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SWP Research Paper

Johannes Thimm From Exception to Normalcy The and the on

Stiftung Wissenschaft und Politik German Institute for International and Affairs

SWP Research Paper 7 October 2018

Abstract

The war on terrorism waged by the United States is in its 17th year. To a large extent, it has defined three very different presidencies and no end is in sight. In the time since the terrorist attacks of September 11, 2001, the initial shock has gradually given way to a new normalcy. The time seems right to assess the US’s approach to combating terrorism – an assessment this study to provide. A key finding of this report is that the global war on is not only continuing, but that it is also becoming increasingly difficult to end. What began as a secret war is now firmly established US policy, both legally and institutionally. In the early years of the global , US methods were strongly criticized by ’s . This criticism has now largely ceased. without a trial, , mass – all of this is at least tolerated, and in some cases even supported. This development is problematic in several respects. Its consequences include the systematic erosion of and civil ; the concentration of decision-making power in the hands of the executive at the expense of the principle; and the expansion of the . Since is unlikely, the question of whether to continue support- ing the United States on its present course is all the more urgent.

SWP Research Paper

Johannes Thimm From Exception to Normalcy The United States and the War on Terrorism

Stiftung Wissenschaft und Politik German Institute for International and Security Affairs

SWP Research Paper 7 October 2018

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© Stiftung Wissenschaft und Politik, 2018

SWP Research Papers are peer reviewed by senior researchers and the execu- tive board of the Institute. They are also subject to fact- checking and copy-. For further on our quality control pro- cedures, please visit the SWP website: https:// www.swp-berlin.org/en/ about-swp/quality- management-for-swp- publications/. SWP Research Papers reflect the views of the author(s).

SWP Stiftung Wissenschaft und Politik German Institute for International and Security Affairs

Ludwigkirchplatz 3–4 10719 Berlin Phone +49 30 880 07-0 Fax +49 30 880 07-200 www.swp-berlin.org [email protected]

ISSN 1863-1053

(Revised and updated English version of SWP-Studie 16/2018)

Table of Contents

5 Issues and Conclusions

7 Introduction: Continuity and Change in the Fight against Terrorism

9 The Normalization of the Global War on Terror 9 A resolution authorizing the war on terrorism 10 A small circle of decision-makers 10 Covert operations as a defining characteristic 11 Rising criticism leads to some limited reversals

13 The Evolution of the War on Terror under Three Presidents 13 The detention and program 13 in the of fighting terrorism 16 Opposition from civil and the other branches 18 Ending torture under Obama 19 Indiscriminate surveillance of communication 19 Overview of the legal basis of the surveillance regime 20 The evolution of surveillance since 9/11 21 A changed debate after the Snowden revelations 23 24 Origins and evolution of the practice of targeted killing 25 Greater transparency and more killings 27 First trends under Trump

29 The National Security State and the Power of the Executive 29 Expansion of the national security state after 9/11 30 State of exception 31 Secrecy 34 Impunity

36 Conclusion: The Cost of the Forever-War

39 Abbreviations

Dr. Johannes Thimm is a Senior Fellow in The Americas Division at SWP

Issues and Conclusions

From Exception to Normalcy The United States and the War on Terrorism

The war on terrorism waged by the United States (US) is in its 17th year. To a large extent, it has defined three very different presidencies and no end is in sight. In the time since the terrorist attacks of September 11, 2001, the initial shock has gradually given way to a new normalcy, and the time seems right to assess how the US’s approach to combating terrorism has affected the , , and over almost the past two decades. Such an assessment is advisable for three reasons. First, the policies for combating terrorism have under- gone a number of changes. The methods have been continually changed, new ones introduced, and ex- isting ones abolished; the legal framework has been adapted; and the fight has been extended to new terrorist groups. This study should help in keeping track of the many twists and turns and to clarify the current situation. Second, the methods being used to terrorism have since found imitators. Not only do autocrats of all kinds justify human rights and the of political opponents as being anti-terror measures, European have not remained unaffected by these changes either. Whereas in the early years following 9/11 European governments had repeatedly and clearly voiced criticisms of some of the controversial methods used for fighting the war, these have now largely ceased. Detentions without trials, targeted killings, indiscriminate surveillance – all of this is at least tolerated, if not supported. Moreover, European governments are following the US example in many respects. In , a constitutional was in force for almost two years after a series of ter- rorist attacks in 2015; subsequently, many of the powers then issued for the police and have been permanently enshrined in a new anti-terror law. Britain had one of its citizens killed in using a drone attack without even attempting to provide any legal justification. And in almost all European coun- tries, the security agencies are constantly demanding new powers to monitor communications. All this leads to a normalization of problematic practices without sufficient discussions of the consequences.

SWP Berlin From Exception to Normalcy: The United States and the War on Terrorism October 2018

5 Issues and Conclusions

Third, the presidency of has given sion of human and civil rights; the concentration of the issue of the fight against terrorism new urgency. decision-making power in the hands of the executive Trump inherited from his predecessors a remarkable at the expense of the separation of powers principle; degree of power in the field of security policy. In con- and the expansion of the national security state. The trast to , however, there is no guaran- national security establishment requires considerable tee that he will deal with it cautiously. There is much resources and has itself become a powerful actor in talk of Trump’s control over the metaphorical red US security policy as a type of “intelligence industrial button of the US nuclear arsenal. On the other hand, complex.” Despite some policy revisions and the dis- his power over the joysticks that steer Predator drones continuation of the worst excesses – especially the equipped with Hellfire missiles attracts relatively use of torture – the measure of what is considered little attention. acceptable in the name of security has permanently A key finding of this report is that the global war shifted over the last two decades. Legal and moral on terror is not only continuing, but that it is also norms that were long regarded as undisputable in becoming increasingly difficult to end. What began the US have suffered lasting damage. as a secret war of a (strongly ideological) presidency is The effectiveness of the war on terror remains dis- now firmly established as US policy, both legally and puted. The aim of the present analysis is not to meas- institutionally. The fight against terrorism by military ure the war’s effectiveness because, in order to do so, means continues, with the aim of preventing terrorist it would be necessary to argue counterfactually as to attacks entirely. The logic of war and prevention has whether there would have been less terrorism today led the US to take a number of controversial measures if the war had not been conducted in this way – a after 9/11. In the context of a partially secret deten- methodologically questionable undertaking. How- tion and interrogation program, alleged terrorists ever, it seems doubtful whether we are closer to the were abducted, arrested, and tortured in order to ob- goal of defeating terrorism today than in 2001. Since tain information about planned attacks. The secret victory is unlikely, the question of whether to con- prisons are now closed and torture has ceased, but the tinue on the present course is all the more urgent. practice of detaining suspects in Guantánamo for an There have been a few changes in US policies that unlimited period without trials continues. Targeted have provoked criticisms from European governments killings of terrorist suspects, often by drones, have after 9/11, however the issue has lost urgency. Be- been expanded due to greater technical possibilities cause Europe held President Obama in high regard, and are a rarely questioned part of this war. When he was not under the same pressure to justify himself the public learned of the indiscriminate surveillance as his predecessor, although he continued many of of the communications and online activities of Ameri- the controversial measures. Now, with Donald Trump cans and foreigners and its questionable legal basis, in the , European governments have there were some minor corrections. However, the far- other concerns and do not want to open up another reaching powers of the intelligence agencies remained area of conflict with Washington. But on their own, largely untouched and were subsequently legalized. US practices will not change, and the longer German Although each of these areas – detentions, targeted and European remain silent about them, the killings, and surveillance – has its own dynamics more that creeping normalization prevents the pos- and individual measures have continuously evolved, sibility of a policy change. the overall picture reveals continuity. This development is problematic in several re- spects. Its consequences include the systematic ero-

SWP Berlin From Exception to Normalcy: The United States and the War on Terrorism October 2018

6 Introduction: Continuity and Change in the Fight against Terrorism

Introduction: Continuity and Change in the Fight against Terrorism

“We will […] unite the civilized world against Radical Islamic Terror- ism, which we will eradicate completely from the face of the .” Donald Trump, 20 January 2017

“We have to be mindful of James Madison’s warning that ‘No nation could preserve its freedom in the midst of continual warfare.’ […] This war [on terror], like all , must end. That’s what history advises. That’s what our democracy demands.” Barack Obama, 23 May 2013

“It [the war on terror] is different than the was, in the sense that it may never end. At least, not in our lifetime.” Dick Cheney, October 2001

In the nationalist of President Donald rhetoric. One of his first acts was to order an Trump, the threat of terrorism occupies a central operation of special forces against an Al-Qaeda cell place. In his typically provocative manner, Trump has in ; 14 people – including several – contemplated all kinds of drastic measures to combat were killed in the operation.3 The is said to terrorism. He told the press that the controversial have declared Yemen and “areas of active interrogation technique of is an effec- hostilities,” and thus relaxed the criteria for the use tive means of obtaining information.1 His plan to of deadly force there.4 The controversial practice of revive secret prisons operated by the Central Intel- the CIA operating its own fleet of armed drones ligence Agency (CIA) was the subject of a leaked draft to carry out targeted killings was not phased out as Executive Order.2 Trump has no intention of closing planned, but expanded. As the agency’s new director, the prison at Guantánamo Bay Naval Base in Cuba and Trump appointed Gina Haspel, who ran a secret CIA is openly considering bringing new there. prison in George W. Bush’s first term. The fact that As usual, Trump has not put everything he con- alleged terrorists were also tortured there attests to templated aloud into action, but it is also not all just Haspel’s strength, according to Trump. The methods for fighting the war against terrorism, 1 “Transcript: ABC Anchor David Muir Interviews which has now lasted for more than 17 years, have President Trump”, ABC News, 25 January 2017, http:// been repeatedly adapted. However, there is continuity abcnews.go.com/Politics/transcript-abc-news-anchor-david- in two respects. First, the terrorist threat has brought muir-interviews-president/story?id=45047602. During his preventive action to the fore. Because deterrence is election campaign, he also said he would not only go after ineffective against terrorists who are prepared to sac- terrorists, but also their families. See Tom LoBianco, “Donald rifice their own lives, the investigation and prosecu- Trump on Terrorists: ‘Take Out Their Families’”, .com, 3 December 2015, https://edition.cnn.com/2015/12/02/politics/ donald-trump-terrorists-families/. 3 Eric Schmitt, “U.S. Commando Killed in Yemen in 2 Charlie Savage, “White House Pulls Back from Bid to Re- Trump’s First Counterterrorism Operation”, New York Times, open C.I.A. ‘’ Prisons”, New York Times, 4 February 29 January 2017, https://nyti.ms/2jETG1Q. 2017, https://nyti.ms/2kApFS9. 4 See section “Targeted killing”, p. 22.

SWP Berlin From Exception to Normalcy: The United States and the War on Terrorism October 2018

7 Introduction: Continuity and Change in the Fight against Terrorism

tion of already committed does not prevent future attacks. However, since the electorate demands prevention, law enforcement and the intelligence services often turn to methods that undermine con- stitutional principles and human rights. Second, in certain parts of the world, the struggle against terror- ism is conducted by military means. The term “war on terrorism” is not a metaphor; rather, the war para- digm is the legal and moral prerequisite for the use of military means, including lethal force. The appli- cation of preventive measures and the war have led to a lasting shift in the perception of what seems legitimate in the fight against terrorism. This has been the common denominator of all US admin- istrations since 9/11.

SWP Berlin From Exception to Normalcy: The United States and the War on Terrorism October 2018

8 A resolution authorizing the war on terrorism

The Normalization of the Global War on Terror

Immediately after the terrorist attacks on the New overthrowing the regime, eliminating York World Trade Center and in 2001, Al-Qaeda, and capturing or killing the backers of the the US government was concerned that further 9/11 attack. attacks were already underway. Those responsible for But the power to use military force was not limited preventing them acted under the impression of an to or certain countries or areas of opera- imminent threat and critical time pressure, leading tion. The war on terrorism was global from the very Congress to give President Bush largely free rein in his beginning.7 The decision as to who or what was a choice of means. Both the authorization by Congress legitimate target was primarily a matter for the presi- and the action by the executive on that basis outlived dent. In a speech to Congress, Bush declared that the the immediate shock after 9/11 and still form the war would continue until every global terrorist group basis of the war against terrorism today. was found and defeated.8

A resolution authorizing the war on terrorism

The legal basis for the war on terrorism is the Authori- zation for Use of Military Force (AUMF), which was 7 In 2005, the Bush administration, initiated by the Depart- adopted as a joint resolution by both chambers of ment of Defense, attempted to replace the term “global war Congress on September 14, 2001, and signed by Presi- on terror” (GWAT) with “global struggle against violent ex- 5 dent Bush on September 18, 2001. The AUMF author- tremism” (G-SAVE). The Obama administration also tried to izes the president “to use all necessary and appro- avoid the term “war on terror” but continued to talk about priate force against those nations, organizations, or the war against Al-Qaeda and its associates. Eric Schmitt persons he determines planned, authorized, commit- and Thom Shanker, “US Officials Retool Slogan for Terror ted, or aided the terrorist attacks that occurred ”, New York Times, 26 July 2005, http://nyti.ms/1LjBiUK; 9/11, or harbored such organizations or persons.” Jay Solomon, “US Drops ‘War on Terror’ Phrase, Clinton Says”, Journal, 31 March 2009, http://www.wsj.com/ That this force was authorized not only against states articles/SB123845123690371231; Trevor B. McCrisken, but also against organizations and individuals was a 6 “Ten Years On: Obama’s War on Terrorism in Rhetoric and novelty. The resolution sanctioned the military inter- Practice”, International Affairs 87, no. 4 (2011): 781–801. vention in Afghanistan, which was initially aimed at Donald Trump uses the term “radical ”. Peter Holley, “‘Radical Islamic Terrorism’: Three Words That 5 Joint Resolution to Authorize the Use of United States Armed Separate Trump from Most of Washington”, Washington Post, Forces Against Those Responsible for the Recent Attacks Launched 1 March 2017, http://wapo.st/2mCfBpR?. Against the United States, 107-40, 18 September 2001. 8 “On September the 11th, of freedom committed See also Daniel Bethlehem, “Self-Defense Against an Immi- an act of war against our country […]. Our war on terror nent or Actual Armed Attack by Nonstate Actors”, American begins with al Qaeda, but it does not end there. It will not Journal of 106, no. 4 (2012): 770–77. end until every terrorist group of global reach has been 6 Richard F. Grimmet, Authorization for Use of Military Force in found, stopped and defeated.” George W. Bush, “Address Response to the 9/11 Attacks (P.L. 107-40): Legislative History, CRS to a Joint Session of Congress and the American People”, Report for Congress RS22357 (Washington, D.C.: Congres- 20 September 2001, http://georgewbush-whitehouse.archives. sional Research Service, updated 16 January 2007). gov/news/releases/2001/09/20010920-8.html.

SWP Berlin From Exception to Normalcy: The United States and the War on Terrorism October 2018

9 The Normalization of the Global War on Terror

A small circle of decision-makers randum that the president’s role as Commander-in- Chief allowed him to ignore existing laws such as the A small group of confidants played an outsized role prohibition of torture.11 The perception of in deciding important aspects of how to conduct threat after 9/11 and the recourse to secret measures the war on terror. In addition to Vice President Dick enabled the supporters of the unitary executive to Cheney, Defense Secretary , and implement their extreme positions into the powers National Security Advisor Condoleezza Rice, a circle of the presidency, initially without much resistance. of advisers who called themselves the “War Council” was particularly influential. It consisted of the White House Counsel, Alberto Gonzales; his deputy Tim Covert operations as a Flanigan; Vice President Cheney’s Chief of and defining characteristic Counsel, David Addington; the Department of De- fense Legal Counsel, William “Jim” Haynes II; and President Bush made covert operations a central John Yoo, the Deputy Assistant Attorney General and part of the fight against terrorism.12 On September the number two at the Justice Department’s Office 17, 2001, he signed a secret order giving the CIA far- of Legal Counsel (OLC) – the whose inter- reaching powers to capture or kill terrorists.13 For this pretations of US laws are authoritative and binding purpose, which was named Operation Greystone, the on the entire executive branch. Sometimes the mem- bers coordinated among themselves before involving other staff of relevant departments. At other times, they dispensed entirely with the usual interagency illegitimate decades-long intrusions on ‘unitary’ executive process, which normally involves a large number of power.” staff.9 11 “Even if an interrogation method arguably were to vio- The people included in the War Council were late Section 2340A [‘committing or attempting to commit likely also selected because of their extreme positions torture’], the statute would be unconstitutional if it imper- missibly encroached on the President’s constitutional power regarding the president’s powers in the system of to conduct a . As Commander-in-Chief, the checks and balances. Vice President Cheney and President has the constitutional authority to order interroga- Defense Secretary Rumsfeld believed that the presi- tions of to gain intelligence information dent enjoyed almost unlimited authority in matters concerning the military plans of the enemy.” See Jay S. of national security, based on the idea of a “unitary Bybee (Assistant Attorney General), “Memorandum for executive.” After the Watergate scandal in the early Alberto R. Gonzales, Counsel to the President”, 1 August 1970s, Congress’s oversight powers over the executive 2002, in The Torture Papers. The Road to Abu Ghraib, ed. Karen J. were strengthened. The revelation that under Presi- Greenberg and Joshua L. Dratel (Cambridge: Cambridge Uni- dent Richard Nixon the White House had violated versity Press, 2005), 172–217 (200). numerous laws and, in particular, abused the law 12 To this day, there is no official public account of these enforcement and intelligence agencies for its own activities. Certain aspects of it, such as the CIA’s so-called political purposes led to a number of legislative detention and interrogation program, have been the subject of official investigations and government reports. Through reforms. They culminated in 1980 in the adoption of them and the work of investigative and human a law requiring newly established Intelligence Com- rights organizations, as well as through investigations by mittees in both chambers of Congress to be briefed the EU, a relatively extensive picture has now emerged, about any covert operations by the CIA. The sup- partly complemented by accounts of former government porters of the unitary executive model rejected such employees. This study is based on this range of sources. an oversight role by Congress as being unconsti- 13 According to the law, covert operations require a Memo- 10 tutional. John Yoo argued in an OLC legal memo- randum of Notification by the president, including a presi- dential finding that the operation is in the national security interest of the United States. See James M. McCormick, Ameri- 9 See Jack L. Goldsmith, The Terror Presidency: Law and Judg- can and Process (Belmont, California: Thomson ment inside the Bush Administration (New York, NY: W. W. Wadsworth, 2004); Chesney, “Military-Intelligence Norton & Company, 2007), 22. Convergence and the Law of the Title 10/Title 50 Debate”, 10 Goldsmith, The Terror Presidency, 85f.: “Addington had Journal of National Security Law and Policy 5 (2012): 539–629 no such instincts. To the contrary, long before 9/11 he and ( of Texas Law, Public Law Research Paper no. 212), his boss had set out to reverse what they saw as Congress’s https://ssrn.com/abstract=1945392.

SWP Berlin From Exception to Normalcy: The United States and the War on Terrorism October 2018

10 Rising criticism leads to some limited reversals

CIA received $1 billion of additional funding.14 In forces have become increasingly interlinked in con- contrast to previous covert programs, the president ducting operations – a phenomenon discussed in did not authorize each operation individually. In- the legal literature under the term “convergence” stead, he delegated the approval of specific opera- (see section “The National Security State and the tions, including targeted killings, to the head of the Power of the Executive,” p. 29). CIA Counterterrorism Center.15 Details were kept secret from the public. Vice President Cheney said in a television interview that, in order to succeed, the Rising criticism leads to some intelligence services would have to work in the dark, limited reversals and without much discussion of their methods.16 In Congress only the leadership of each party and the As the public’s knowledge of the administration’s chairmanship and ranking members of the relevant extreme measures grew, so did the opposition to it. committees were informed, likely only on the most The criticism was most pronounced with respect to general terms (see section “The detention and inter- the conditions governing the detention, treatment, rogation program,” p. 13). Only years later did the and interrogation of terrorist suspects – it was in public find out exactly what the new powers in- this area that the resulting reversals were most sig- cluded. nificant. US courts claimed jurisdiction over the At the initiative of Defense Secretary Rumsfeld, prisoners against the will of the White House, regard- not only were the CIA but also the military’s special less of where they were held. Prisoners’ complaints forces increasingly called upon. The special forces against their detention and the conditions of their of the various branches of the armed forces were imprisonment, as well as trials of those accused of expanded and given greater autonomy in carrying terrorism, led to a series of rulings that gradually re- out operations under the Joint stricted the government’s flexibility and strengthened Command (JSOC). After 9/11, the number of troops prisoners’ rights. As the systematic nature of the under JSOC increased from 30,000 to approximately became known, Congress also intervened to ban vio- 70,000.17 Over time, the CIA and military special lent practices. This was not a straightforward process; rather, over many years, there was a continuous tug-

14 and William M. Arkin, . of-war between the executive, legislative, and judicial The Rise of the New American Security State (New York, NY: Little, branches over the appropriate laws regarding the Brown and Company, 2011), 6. treatment of potential and actual terrorists. The ad- 15 , . The World Is a Battlefield ministration was forced to give in on crucial points; (London: Nation Books, 2013), 20. In the words of the later the situation of the prisoners at the end of the Bush deputy CIA director Michael Morell: “Never before had the era was different from the one shortly after 9/11. But Agency had as much latitude to conduct opera- despite the changes, the rule of law and human rights tions, and it used those authorities aggressively to protect standards remained significantly lower than before the country.” Michael Morell and Bill Harlow, The Great War the beginning of the global war on terror. President of Our Time: The CIA’s Fight Against Terrorism. From Al Qa’ida to Obama’s ascent to the presidency made little differ- ISIS (New York, NY: Twelve, 2015), 73. ence in this regard. 16 “We also have to work, though, sort of the dark side, One crucial difference between Obama and his if you will. We’ve got to spend time in the shadows in the intelligence world. A lot of what needs to be done here will predecessor was that the new president unequivocally have to be done quietly, without any discussion, using condemned and ended the system of secret prisons sources and methods that are available to our intelligence and torture. But even under Obama, indefinite deten- agencies, if we’re going to be successful. That’s the world tions without a trial – whether in Guantánamo or these folks operate in, and so it’s going to be vital for us elsewhere – trials by military commissions with more to use any means at our disposal, basically, to achieve our limited rights for the accused, and the possibility of objective.” Dick Cheney, “The Vice President Appears on the “” of alleged terrorists to Meet the Press with Tim Russert”, 16 September 2001, third countries continued. http://georgewbush-whitehouse.archives.gov/vicepresident/ news-speeches/speeches/print/vp20010916.html. 17 Mark Danner et al., “In the Darkness of Dick Cheney”, cheney/; Andrew Fieckert, US Special Operations Forces (SOF): The New York Review of Books, 6 March 2014, http://www. Background and Issues for Congress, CRS Report for Congress nybooks.com/articles/archives/2014/mar/06/darkness-dick- 7-5700 (Washington, D.C.: CRS, 8 April 2016).

SWP Berlin From Exception to Normalcy: The United States and the War on Terrorism October 2018

11 The Normalization of the Global War on Terror

Obama’s criticism was less about the question Bush’s anti-terrorist policy after taking human rights violations than about office; rather, he created a more sophisticated legal the fact that Bush had acted without justification, often through new justifications for sufficient legal basis. existing practices.18 President Trump’s policy does not yet have a clear On the question of government surveillance, the outline. On the one hand, the terrorist threat was public’s lack of knowledge of the extent of the gov- a central issue in his election campaign, and on the ernment’s measures long prevented any critical dis- other hand, he seems to be paying more attention cussions. Obama’s inauguration had no consequences to relations between the major powers. However, his here, at first. In 2013, with the publication of internal statements have made it clear that he lacks any con- documents by former intelligence contractor Edward cern for the situation of a permanent state of war. Snowden, the government’s secret surveillance author- Beyond rhetoric, continuity also seems to predomi- ities became public, and the legal justifications for nate under Trump; the thrust of his early actions this claim to power were questioned. Only now did seems to indicate an escalation rather than a limi- political emerge, which led to some correc- tation of the war. At the same time, his ignorance tions. and lack of interest in the details of policy give the The policy of targeted killings, on the other hand, national security bureaucracy every opportunity to never triggered a major public outcry, even after the pursue its own agenda. Obama administration publicly admitted it. That the government used drones to kill alleged terrorists had never been a real secret. Rather, classifying such measures as “covert operations” allowed them to avoid defining clear criteria for the legality of indi- vidual operations and of having to assume respon- sibility for victims. At the same time, the US drone strikes were kept secret in order to conceal the fact that allied governments such as and Yemen tacitly tolerated them. The expansion of the drone program under Obama also provoked little political resistance, despite numerous critical cam- paigns by human rights organizations. The Obama administration not only continued the controversial measures, but also institutionalized them more firmly. Whereas the Bush administration had introduced some methods in violation of existing laws and justified them – if they were justified at all – as being contained within the inherent powers of the executive, Obama put his policy on a more solid institutional basis. He established new decision- making procedures within the executive, had new justifications for the legality of measures drawn up and, with the involvement of Congress, succeeded in creating a new statutory basis for existing practices. Charlie Savage convincingly shows that, from the outset, Obama’s criticisms of Bush’s ap- proach to the war on terror was not so much on sub- stantive issues. Instead of condemning civil or human rights violations, he lamented the fact that Bush acted

on his own – without a legal basis – and bypassed 18 Charlie Savage, Power Wars. Inside Obama’s Post-9/11 Presi- the and the system of checks and bal- dency (New York, NY, Boston, and London: Little, Brown and ances. Accordingly, Obama did not fundamentally Company, 2015).

SWP Berlin From Exception to Normalcy: The United States and the War on Terrorism October 2018

12 The detention and interrogation program

The Evolution of the War on Terror under Three Presidents

As more time following the 9/11 attacks passed, some tainee Program.20 This gave the intelligence agencies measures were reversed (such as the use of torture), maximum flexibility to capture, , detain, or some mitigated (such as the inadvertent surveillance transfer prisoners from one country to another out- of US citizens), some maintained (such as indefinite side of normal processes and, if necessary, without detention without trial), and some expanded (such as the of the host country. The CIA created a targeted killings using drones). system of secret prisons spread over several countries in which prisoners from whom the US expected im- portant information in the war on terror (“high- The detention and interrogation program detainees”) were detained and interrogated without any legal protections and had no contact with the On February 7, 2002, President Bush stated in a memo- outside world.21 randum that the war on terrorism created a “new paradigm” to which the did not apply.19 On the basis of the secret directive signed by Torture in the name of fighting terrorism Bush on September 17, 2001, the CIA established a program to capture individuals “posing a continuing, Not only CIA prisoners, but also military prisoners serious threat of or death to U.S. persons and were held in locations without access to US courts. interests or planning terrorist activities.” Interroga- They were either detained in military prisons in tion methods were not mentioned, but the directive Afghanistan or taken to Guantánamo Bay Naval Base. formed the basis for the so-called High Value De- The CIA requested instructions from the government on which interrogation methods were allowed. The CIA staff in the field and the decision-makers on 19 According to the memo, the Third Geneva the War Council apparently quickly agreed that the was not applicable to the conflict with Al-Qaeda, because brutal interrogation techniques would be permitted the network was neither a state nor “a High Contracting in the quest for intelligence. Party to Geneva”. Common Article 3 of the Convention was The OLC at the Department of Justice prepared a neither applicable to Al-Qaeda nor to the Taliban, because series of memorandums with the aim of giving the the conflict was international in character, whereas Article 3 only applied to non-international conflicts. Neither were the Taliban and Al-Qaeda as unlawful combatants entitled 20 Senate Select Committee on Intelligence, Committee to -of-war status according to Article 4. The White Study of the Central ’s Detention and Interrogation House, “Memorandum by the President”, 7 February 2002, Program, 9 December 2014 (S. Rpt. 113–288), xviii, 11. The in The Torture Papers, ed. Greenberg and Dratel (see note 11), Memorandum of Notification itself is still classified. 134f. Especially Secretary of State and his legal 21 Senate Select Committee on Intelligence, Committee Study advisor William H. Taft IV had contradicted this assessment. of the Central Intelligence Agency’s Detention and Interrogation Pro- Bush, however, followed his Attorney General, John Ash- gram, xviii, 11. Also see Stephen Grey, Ghost Plane: The True croft, who was also supported by legal advisers Alberto Gon- Story of the CIA Torture Program (New York, NY: Holtzbrinck zales (White House) and William Haynes (Pentagon), both Publishers, 2006); a map with the location and duration of members of the War Council. On the controversy over the operation of these “black sites” is available at Matt Apuzzo, applicability of the Geneva Conventions, see the memoranda Sheri Fink, and James Risen, “How U.S. Torture Left a Legacy of the relevant actors in The Torture Papers, ed. Greenberg and of Damaged ”, New York Times, 9 October 2016, https:// Dratel (see note 11), 38–133. nyti.ms/2k5yq2W.

SWP Berlin From Exception to Normalcy: The United States and the War on Terrorism October 2018

13 The Evolution of the War on Terror under Three Presidents

government maximum flexibility in dealing with called waterboarding,25 the use of which had to be prisoners. Its lawyers came up with new interpreta- approved in individual cases and has been confirmed tions of existing laws to (1) construe the prohibition with respect to three suspects.26 Through extraordi- of torture so narrowly that many of the intended nary rendition, prisoners were also handed over to methods were supposedly not covered; (2) create legal the intelligence services of allies in the war on terror, loopholes that allowed the government to circumvent including numerous states that are well-known to the prohibition of cruel, inhuman, and degrading torture, such as , , and . This treatment; and (3) immunize the persons responsible was done both for – a practice re- for the interrogations from criminal prosecution – ferred to by critics as the “outsourcing of torture” – from the political decision-makers to the perpetrators and to permanently remove people who were con- on the ground.22 sidered dangerous.27

It was permitted to confine detainees for hours in boxes into which they 25 During waterboarding, the prisoner is tied to a board and his nose and mouth are covered with a cloth on which could barely fit. water is poured. When the subject tries to breathe, water slowly enters the lungs. In the press, waterboarding is often Initially, the CIA had permission to employ 10 co- referred to as “simulated drowning”. However, the only ercive measures, euphemistically called “enhanced aspect of it that can be called is that the process interrogation techniques,” to interrogate terrorism is interrupted before the subject suffocates. Christopher 23 suspects. Although the official list of techniques re- Hitchens, “Believe Me, It’s Torture”, Vanity Fair, 2 July 2008, mains secret, it has become known that they include https://www.vanityfair.com/news/2008/08/hitchens200808; sleep deprivation over long periods of time, often Malcolm Nance, “I Know Waterboarding Is Torture – achieved through forced standing or other painful Because I Did It Myself”, New York Daily News, 31 October “stress positions,” deafening noise, and/or bright 2007, http://www.nydailynews.com/opinion/waterboarding- lights.24 Interrogators were also permitted to expose torture-article-1.227670. CIA interrogation protocols show that had to be reanimated after one of the prisoners to extreme heat and cold; to confine them multiple waterboarding sessions he had to endure. See for hours in boxes into which they could barely fit; Senate Select Committee on Intelligence, Committee Study to bang them against walls and slap them in the face (see note 20), 423. with an open hand; to exploit their phobias, for ex- 26 The US government has admitted to the use of water- ample of dogs or insects; and to employ the so- boarding by the CIA with respect to three persons. Morell (with Harlow, The Great War of Our Time [see note 15], 246) claims that these were the only cases, and that the technique was last employed in 2003, and after 2006 it was was no 22 Johannes Thimm, Farewell to the Laws Against Torture? longer authorized. Senator Dianne Feinstein casts doubts The American Treatment of Detainees in the Fight Against Terrorism, on Morell’s version: “Fact Check: Inaccurate and Misleading SWP Comment 12/2005 (Berlin: Stiftung Wissenschaft und Assertions Related to the CIA Detention and Interrogation Politik, March 2005); Department of Justice, Office of Pro- Program in The Great War of Our Time: The CIA’s Fight Against fessional Responsibility, Investigation into the Office of the Legal Terrorism – From al Qa’ida to ISIS by Michael Morell and William Counsel’s Memoranda Concerning Issues Relating to the Central Intel- Harlow, https://www.feinstein.senate.gov/public/_cache/ ligence Agency’s Use of “Enhanced Interrogation Techniques” on Sus- files/e/3/e369f4a2-6993-43d2-aa99-23c15075dd4d/78FA199F pected Terrorists, 29 July 2009; see also Goldsmith, The Terror 8373DAFA360335AA07372B80.fact-check---response-morell- Presidency (see note 9); The Torture Papers, ed. Greenberg and and-harlow-book-6-2-15.pdf. The journalist James Risen Dratel (see note 11). reports that special forces in Afghanistan also used water- 23 Morell and Harlow, The Great War of Our Time boarding. See James Risen, Pay Any Price. Greed, Power, and (see note 15), 246. Endless War (Boston: Houghton Mifflin Harcourt, 2014), 172. 24 See Senate Select Committee on Intelligence, Committee See also , Delivered into Enemy Hands. US- Study (see note 20). The International Committee of the Red Led Abuse and Rendition of Opponents to Gaddafi’s , Septem- Cross (ICRC) concluded in 2007 that the interrogation tech- ber 2012, https://www.hrw.org/report/2012/09/05/delivered- niques described by prisoners, individually and collectively, enemy-hands/us-led-abuse-and-rendition-opponents-gaddafis- constitute torture and/or cruel, inhuman, and degrading libya. treatment. See International Committee of the Red Cross, 27 Grey, Ghost Plane (see note 21); Open Society Justice ICRC Report on the Treatment of 14 “High Value Detainees” in CIA Initiative, Globalizing Torture: CIA Secret Detention and Extra- Custody, September 2007. ordinary Rendition (New York, NY: ,

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14 Torture in the name of fighting terrorism

such practices be approved. On December 2, 2002, The origins of the “enhanced Defense Secretary Rumsfeld approved by memo a list interrogation techniques” of 15 of 18 requested interrogation techniques that The aggressive techniques were adopted from a training went beyond the non-coercive standard techniques program designed to prepare US soldiers for their capture permitted in the relevant Army Field Manual.28 by enemy forces – the so-called Survival, Evasion, Resist- Methods that were originally only approved for ance and Escape (SERE) training. In this training, certain Guantánamo quickly found their way into the mili- soldiers are exposed to treatment they might face if cap- tary prisons in Afghanistan and Iraq. There was tured by enemy troops in order to increase their ability to confusion as to what exactly was permitted where. resist coercion. These methods, which outside of a train- For example, in Iraq, the Third Geneva Convention ing situation are generally considered to violate humanitar- relative to the treatment of prisoners of war applied, ian law (they are based on practices used by the Chinese on US soldiers to coerce false confessions during the granting captives there full prisoner-of-war status ), were adopted as a model for US interroga- with all the corresponding protections. Yet, members tions of alleged terrorists. At the center of the techniques’ of the CIA and nevertheless used development were two psychologists who had been SERE brutal interrogation methods. As a consequence, trainers for the Air Force: James Mitchell and Bruce lower ranked military troops, such as prison guards, Jessen. They convinced those in government that these also mistreated prisoners there. This happened both techniques could, on the one hand, make prisoners tell when they were following instructions from the intel- the truth and, on the other hand, that they did not con- ligence personnel in connection with interrogations a stitute torture. In 2002/2003, SERE staff trained the and when following their own initiative. A direct Afghan, Iraqi, and Guantánamo commandos as well as result of this development were the abuses in the CIA and Defense Intelligence Agency staff in the use of Iraqi prison Abu Ghraib, graphic pictures of which aggressive interrogation techniques.b After some time as were leaked and made headlines worldwide.29 government employees, Mitchell and Jessen continued to consult the military and intelligence agencies as private Cruel conditions of detention, ill-treatment, and contractors. Over the years, the fees for their consultancy torture were probably the cause of death among work accumulated to almost $70 million. about 100 prisoners who died in US custody between 2001 and 2006. The human rights organization a OLC Head Steven Bradbury argued to CIA Counsel Human Rights First concludes that 34 cases are sus- John Rizzo that the SERE methods were safe and did not pected or confirmed ; it is likely that cause mental harm. James Risen, Pay Any Price. Greed, another 11 prisoners died in prison as a result of Power, and Endless War (Boston: Houghton Mifflin Har- “physical abuses or the harsh conditions of their court, 2014), 187. detention.”30 In eight to twelve cases, the organiza- b Senate Select Committee on Intelligence, Committee Study (see note 20).

28 “Action Memo for Secretary of Defense from William Aggressive methods were also approved for the J. Haynes II, General Council, Re: Counter Resistance Tech- interrogation of prisoners detained at the Guantá- niques”, 27 November 2002 (approved on 2 December 2002), in The Torture Papers, ed. Greenberg and Dratel (see note 11), namo military base. The task force responsible for 236ff.; see also , Inquiry into the Treatment Guantánamo asked US Central Command for the of Detainees in U.S. Custody. Report of the Committee on Armed Ser- authorization to use aggressive interrogation tech- vices, 20 November 2008, https://www.armed-services.senate. niques, following training of its personnel by the gov/imo/media/doc/Detainee-Report-Final_April-22-2009.pdf. same SERE officers who had already advised the 29 Ibid. See in particular Article 15-6 Investigation of the 800th CIA (see box). Although the military lawyers of all Military Police Brigade (Tabuga Report), March 2004; Final Report branches of the armed forces expressed legal and of Panel to Review DoD Detention Operations (Schle- political concerns about aggressive interrogation singer Report), August 2004; Investigation of Intelligence Activities techniques, the Pentagon’s leading legal adviser, at Abu Ghraib/Investigation of the Abu Ghraib Prison and 205th William Haynes, recommended that a number of Military Intelligence Brigade, LTG Anthony R. Jones/Investigation of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade, MG George R. Fay (Fay-Jones Report), August 2004. February 2013), http://www.opensocietyfoundations.org/ 30 Hina Shamsi, Command’s Responsibility. Detainee Deaths reports/globalizing-torture-cia-secret-detention-and- in U.S. Custody in Iraq and Afghanistan, ed. Deborah Pearlstein extraordinary-rendition. (Human Rights First Report, February 2006), http://www.

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15 The Evolution of the War on Terror under Three Presidents

tion assumes that prisoners were tortured to death. of attention early on. Private attorneys, human rights Five deaths involved the CIA.31 In 2005, the military lawyers, and university law clinics took on pro bono admitted investigating 26 cases of criminal cases representing inmates to defend their rights and in Afghanistan and Iraq.32 access to the justice system. Investigative journalists In 2006, President Bush publicly defended CIA and non-governmental organizations raised aware- actions against Al-Qaeda member Abu Zubaydah, one ness; government sources repeatedly leaked infor- of the first prisoners to be tortured in a secret prison. mation and documents to the press – indicating the Bush claimed that the “alternative methods” were degree of internal controversy surrounding the policy. necessary to save lives and insistently defended their The situation of the prisoners sprung to the atten- legality.33 tion of a wider public when the press got hold of photos from the Iraqi prison Abu Ghraib in May 2004. The pictures documented in detail instances of cruel Opposition from and the abuse and sexual humiliation, including pictures of a other government branches prisoner’s dead body. The Abu Ghraib scandal led to a series of internal military investigations, which in As more information about the secret prisons and turn revealed that brutal methods were used system- detention conditions became public, criticisms grew. atically during interrogations. Shortly afterwards, the The Guantánamo Bay Naval Base prison was a focus first legal opinions from the Justice Department’s OLC – in which coercive interrogation methods had been 34 humanrightsfirst.org/wp-content/uploads/pdf/06221-etn-hrf- declared legal – also leaked. dic-rep-web.pdf. Investigative reporters finally uncovered the CIA’s 31 Ibid., 9. detention and interrogation program. Through state- 32 Douglas Jehl and Eric Schmitt, “U.S. Military Says 26 ments of released prisoners and the tracking of the Inmate Deaths May Be Homicide”, New York Times, 16 March flights that the CIA had used to transport prisoners 2005, https://nyti.ms/2FUeOKE. “The Torture Database”, main- between various secret prisons, reporters eventually tained by the American Civil Union, contains hun- managed to put pieces of the puzzle together.35 The dreds of report about criminal investigations inside the US judicial authorities of concerned countries investi- military. See http://www.thetorturedatabase.org. 36 33 The White House, “President Discusses Creation of Mili- gated and the and the European 37 tary Commissions to Try Suspected Terrorists”, 6 September Union took action. Slowly, a more comprehensive 2006, https://georgewbush-whitehouse.archives.gov/news/ releases/2006/09/print/20060906-3.html: “We knew that 34 In December 2004, published a Zubaydah had more information that could save innocent memorandum for White House Counsel Alberto Gonzales. lives, but he stopped talking. As his questioning proceeded, Authored by John Yoo and signed by , it argues, it became clear that he had received training on how to inter alia, that in order to rise to the level of torture, treat- resist interrogation. And so the CIA used an alternative set ment must cause severe pain at “a level that would ordinarily of procedures. These procedures were designed to be safe, be associated with a sufficiently serious physical condition to comply with our laws, our Constitution, and our or injury such as death, organ failure, or serious impairment obligations. The Department of Justice reviewed the author- of body functions” (p. 6). Most leaked memos are compiled ized methods extensively and determined them to be lawful. in The Torture Papers, ed. Greenberg and Dratel (see note 11). I cannot describe the specific methods used – I think you 35 Early pointers to the CIA program were the cases of understand why – if I did, it would help the terrorists learn Canadian citizen Maher Arar and of German citizen Khaled how to resist questioning, and to keep information from us El-Masri, who were freed after prolonged CIA detention that we need to prevent new attacks on our country. But I when their innocence finally became clear. On how journal- can say the procedures were tough, and they were safe, and ists of various countries uncovered the secret CIA flights, lawful, and necessary.” The protocol of a CIA interrogation see Grey, Ghost Plane (see note 21). of Abu Zubaydah is available here: “Details Regarding the 36 After the CIA had abducted a Muslim religious leader Cycle of Interrogations of Abu Zubaydah on August 6, 2002”, suspected of terrorism from the streets of (probably August 2002, accessible through the UC Davis Center for the with the knowledge of the Italian government), the Italian Study of Human Rights in the Americas, http://humanrights. state prosecutor investigated. His prosecution led to the con- dss.ucdavis.edu/projects/the-guantanamo-testimonials- viction in absentia of 22 CIA agents on charges of . project/testimonies/prisoner-testimonies/prisoner-testimonies/ 37 See e.g. Council of Europe: Parliamentary Assembly, details-regarding-the-cycle-of-interrogations-of-abu- Lawfulness of Detentions by the United States in Guantánamo Bay, zubaydah-on-august-6-2002-august-2002. 8 April 2005, Doc. 10497; UN Economic and Social Council:

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16 Opposition from civil society and the other government branches

picture of the various aspects of imprisonment and Torture).42 In addition, the law stipulates that all torture emerged. prisoners under control of the Defense Department From 2004, the Bush administration was increas- must be treated in accordance with the standards ingly forced to defend its practices to the other gov- of the relevant Army Field Manual, which prohibits ernment branches. The US granted cruel, inhumane, and degrading treatment in accord- Guantánamo prisoners the right to challenge their ance with Common Article 3 of the Geneva Conven- detentions in US courts on the basis of the habeas tions.43 However, there are loopholes in the law. The corpus principle.38 It also decided that the military standards of the Army Field Manual apply only to commissions authorized by President Bush in 2001 prisoners of the army, not to those held by the intel- were inadmissible in their existing form because they ligence services. It is possible to change the corre- were incompatible with the Uniform Code of Military sponding Army Field Manual. Nor does the legislation Justice and the Geneva Conventions.39 outlaw extraordinary renditions. The law also strength- ens the protection of government employees against The Detainee Treatment Act was attempts to prosecute them under civil or criminal intended to strengthen prisoners’ law for the abuse of prisoners – in their legal de- rights – but loopholes remained. fense, they can claim to have acted in the that the interrogation methods were legal. Furthermore, Congress played an ambivalent role, at times re- the jurisdiction of US courts to hear habeas corpus law- stricting the executive’s freedom of action and at suits of prisoners against their detention in Guantá- other times reaffirming it. On December 30, 2005, namo is restricted.44 the Detainee Treatment Act was passed as part of a Congress strengthened the powers of the adminis- supplemental defense appropriations bill in order tration with respect to the detention of enemy com- to eliminate ambiguities in the legal status quo that batants and their trial before military commissions. allegedly had led to the mistreatment of prisoners.40 After the Supreme Court in 2006 declared military It was sponsored by the Republican Senator John commissions based on the 2001 Bush order illegal, McCain, who had particular credibility as Chairman Congress created a new legal basis for commissions of the Armed Forces Committee and a known foreign with the Military Commissions Act (MCA).45 Unlawful policy hawk in addition to having first-hand experi- enemy combatants of foreign nationality could now ence with torture as a in the be tried before military commissions. This category War. includes, for example, members of Al-Qaeda, the The law explicitly rejects the reasoning that the Justice Department lawyers had relied on to justify 42 This was necessary because the argued brutal interrogation methods.41 It protects all prison- that the prohibition of cruel, inhuman and degrading (C.I.D.) ers under the effective control of the US govern- treatment in the Convention Against Torture only applied ment – including non-US citizens detained outside to US persons (on the term, see note 53) protected by the US the US – from cruel, inhuman, and degrading treat- Constitution, since in a reservation to the treaty, Washing- ment (based on the definition laid down by Washing- ton had based its definition of C.I.D. treatment on the mean- ing of “cruel, unusual and inhumane treatment or punish- ton when it ratified the UN Convention against ment” in the US Constitution. The court explicitly rejects that only US persons are protected by the convention. 43 At the time the Detainee Treatment Act passed, this was Commission on Human Rights, Situation of the Detainees at Army Field Manual 34-52: Intelligence Interrogation (1992). It Guantánamo, 15 February 2006, U.N. Doc. E/CN.4/2006/120 was later replaced by FM 2-22.3: Human Intelligence Collector (2006). Operations (2006). 38 Supreme Court of the United States, Rasul v. Bush, 542 44 President Bush continued to undermine the law’s intent U.S. 466 (2004). to close loopholes. Upon approving the legislation, he added 39 Daniel Bodansky and Peter J. Spiro, “Hamdan v. Rums- in a signing statement that the executive would construe the feld. 126 S.Ct.2749”, American Journal of International Law 100, law consistent with his inherent authority as Commander-in- no. 4 (2006), 888–95. Chief to protect the American people from further terrorist 40 Detainee Treatment Act of 2005, Public Law No. 109–148, attacks. In other words: If the law hindered this objective, it 30 December 2005. would be unconstitutional and he could ignore it. 41 Arsalan M. Suleman, “Detainee Treatment Act of 2005”, 45 Military Commissions Act of 2006, Public Law No. 109– Harvard Human Rights Journal 19 (2006): 257–65. 366, 17 October 2006.

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17 The Evolution of the War on Terror under Three Presidents

Taliban, and forces allied with them who have par- interrogation program remained in place, but most ticipated in, or materially supported, hostile actions. likely it was no longer used after 2006. In addition, tribunals appointed by the Secretary of Defense may declare prisoners unlawful enemy combatants.46 New procedural rules have strengthened Ending torture under Obama the rights of the defendants compared to the previous military commissions, but they are still not compa- Shortly after taking office, President Obama issued rable with the rule of law standards in civilian crimi- an Executive Order mandating all government nal proceedings or courts martial. Statements made authorities, including the CIA, to follow the relevant under torture are inadmissible; however, coerced Army Field Manual in the treatment of prisoners.49 statements may be used under certain circumstances. The administration admitted the use of torture in the Rulings of military commissions can be appealed only past and ruled it out for the future. First, the desig- once in a federal appeals court. The law reaffirms nated candidate for Attorney General, Eric Holder, that unlawful combatants cannot make habeas corpus publicly admitted that the use of waterboarding con- claims in US courts, even if their cases are already stitutes torture. Later, Obama also declared that pris- pending.47 Those detained as unlawful combatants oners had been tortured in US custody – a fact that have no way to challenge their detention before a the Bush administration had denied to the very end, tribunal has established their status; this way, they not least because of the implications for criminal can potentially be detained indefinitely. prosecution.50 With the MCA, Congress came to the administra- But Obama deliberately kept open the possibility tion’s after the Supreme Court overturned the of imprisoning prisoners without a trial for an un- system of military commissions. The direct applic- limited period of time. After recognizing how many ability of the Geneva Conventions to the standards of the Guantánamo detainees were potentially dan- of detention and the definitions of torture and cruel, gerous but could not be tried due to lack of evidence, inhuman, and degrading treatment were more lim- the administration successfully defended the possi- ited than in international law, although not as bility of unlimited detention in the courts. Obama’s restricted as in the administration’s legal memoranda. legal justification was not based on the president’s The legislators did not follow the executive in all inherent power, but on the AUMF. However, in prac- respects and guaranteed a minimum of rule of law tice, nothing changed for the prisoners. Obama’s standards. Nevertheless, they gave the government attempts to close Guantánamo were defeated by Con- much more flexibility in dealing with enemy com- gress. In a series of laws, Congress prohibited the batants than would be have been possible under a president from transferring prisoners from Guantá- traditional legal process.48 namo to the US. The number of inmates there was In September 2006, President Bush publicly ad- further reduced, but at the end of Obama’s final term mitted that secret prisons existed and ended the prac- in office, there were still 41 prisoners in Guantána- tice at the same time. The remaining 14 high-value mo. Among them were five recommended for release detainees were transferred to Guantánamo and the by a government body and 26 who were found to be International Committee of the Red Cross was granted access to them. Formally, the CIA’s detention and

49 Executive Order No. 12491, Ensuring Lawful Interrogations, Fed. Reg. 4893 (22 January 2009). 46 For this and for the following, see Arsalan M. Suleman, 50 David Stout, “Holder Tells Senators Waterboarding Is “Military Commissions Act of 2006”, Harvard Human Rights Torture”, New York Times, 15 January 2009, https://nyti.ms/ Journal 20 (2007): 325–37. 2F5c2kE; The White House, “Press Conference by the Presi- 47 In contrast, in the case of Hamdan v. Rumsfeld, the Su- dent”, 1 August 2014, https://obamawhitehouse.archives. preme Court had exempted pending cases from the Detainee gov/the-press-office/2014/08/01/press-conference-president: Treatment Act’s restrictions on habeas corpus challenges. “We did a whole lot of things that were right, but we tor- 48 See also Jack Goldsmith, “How Obama Learned to Love tured some folks. We did some things that were contrary Military Commissions”, Slate (21 March 2012), http://www. to our values. [...] And when we engaged in some of these slate.com/articles/news_and_politics/jurisprudence/2012/03/ enhanced interrogation techniques, techniques that I believe military_commissions_now_have_broad_political_support_ and I think any fair-minded person would believe were from_republicans_and_democrats_alike_.html. torture, we crossed a line.”

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18 Indiscriminate surveillance of communication

too dangerous to release.51 Obama also kept open the unreasonable searches and seizures by the Fourth option for extraordinary rendition. However, from Amendment of the Constitution, which also applies what we know, it was not used to outsource torture, to intrusions on their communication. The current as had been alleged of the Bush administration. In the practice is under criticism because even the statutory time since Trump has taken office, one Guantánamo rights of US persons are not sufficiently safeguarded prisoner has been transferred to to serve (non-US persons lack corresponding rights under US out the remainder of his sentence; he was convicted law). We can distinguish between three legal regimes, after pleading guilty to war crimes.52 which are used as the basis for monitoring. The first, Section 215 of the USA , adopted in 2001, relates mainly to domestic intelligence. On this basis, Indiscriminate surveillance of the Federal Bureau of Investigation (FBI) and the communication (NSA) temporarily operated programs to routinely collect and store – in coopera- The ability of the intelligence and law enforcement tion with the major telephone and providers communities to monitor electronic communications – the metadata of all electronic communications has continuously evolved over the years to keep for five years. When these programs became known pace with technological developments. The terrorist publicly, they were widely criticized for being dis- attacks on 9/11 revealed gaps in intelligence gathering proportionate. The collection of e- metadata was and sharing. As a result, the technical capabilities and discontinued in 2011. Three different legal license to collect and store electronic data have concluded unanimously that the program was inef- been massively expanded, and the ability to exchange fective and based on a problematic interpretation of data between different authorities has been enhanced. Section 215. The three groups were: the President’s Neither Obama’s time in office nor the criticisms that Review Group on Intelligence and Communications followed Snowden’s revelations about the existing Technologies, an expert commission set up by Obama practices fundamentally changed this trend. As a in response to the Snowden revelations; the Privacy result, the US government now has a variety of means and Oversight Board (PCLOB), a biparti- to monitor communications and internet activities san advisory council on privacy and civil rights estab- at home and abroad and to share the insights gained lished by Congress in 2004; and finally the Inspector within security and law enforcement agencies. The General of the Department of Justice. Subsequently, use of surveillance measures is not limited to com- the handling of telephone connection data was also bating terrorism but includes all purposes of foreign modified, and Congress passed the USA Freedom Act intelligence, as well as some law enforcement activ- (see below). ities, such as the war on drugs. The more important surveillance programs fall under the category of foreign intelligence. The sec- ond legal basis is codified in Section 702 of the FISA Overview of the legal basis of the Amendments Act (FAA), a modified version, adopted surveillance regime in 2008, of the Foreign Intelligence Surveillance Act (FISA) of 1978. Third, the president claims inherent The debate in the US focuses primarily on the han- authorities based on the Constitution that are de- dling of data of US persons,53 who are protected from scribed in Executive Order 12333. FISA is the result of efforts by Congress at that time to better control the activities of the intelligence ser- 51 Carol Rosenberg, “Guantánamo. By the Numbers”, vices. It defined rules for foreign intelligence gather- Miami Herald, 25 October 2016 (last modified 16 July 2018), ing on US territory. Accordingly, persons in the US http://www.miamiherald.com/news/nation-world/world/ suspected of foreign could only be moni- americas/guantanamo/article2163210.html. tored based on a warrant by the then newly estab- 52 Carol Rosenberg, “U.S. Releases Guantánamo Convict lished Foreign Intelligence Surveillance Court (FISC, to Saudi Arabia in First Transfer of Trump Era”, Miami Herald, or the FISA Court). All forms of electronic intelligence 2 May 2018, https://www.miamiherald.com/news/nation- world/world/americas/guantanamo/article208718319.html. 53 The legal term “US person” refers to US citizens regard- the United States. US persons are under US jurisdiction and less of their location as well as permanent legal residents in are entitled to the protection of the US Constitution.

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19 The Evolution of the War on Terror under Three Presidents

not covered by FISA – in particular the surveillance abandoned the secrecy of this measure.58 The other of non-US citizens outside the US – were carried out programs for storing telephone and e-mail metadata on the basis of Executive Order 12333.54 Such foreign initially remained secret, although the intelligence was the responsibility of the NSA, which USA Today reported on the monitoring of telephone specializes in signals intelligence and is part of the metadata in May 2006.59 Defense Department. The Bush administration simply regarded all data as “relevant” to The evolution of surveillance since 9/11 prevent terrorist attacks.

After 9/11, the Bush administration relaxed the pro- At the insistence of the Bush administration, on visions for the work of the NSA to allow it to operate May 26, 2006, the FISA Court began – initially with- domestically. But instead of seeking a change in the out public knowledge – to approve the collection law, Bush authorized the NSA on October 4, 2001, of telephone metadata in bulk for certain periods in- based on his authority as president, to circumvent the stead of issuing specific judicial decisions for indi- rules of FISA.55 As a result, the NSA, in cooperation vidual surveillance measures. According to FISA, the with the major telephone companies, began to moni- Court may order the collection of information rele- tor telephone calls and e- in which either the vant to espionage or terrorism investigations. The sender or the recipient of the communication were administration convinced the judges that all the data located abroad. The content of communications sus- was relevant to prevent terrorist attacks.60 Based on pected of being related to Al-Qaeda was scrutinized. the FISA Court’s approval, the government was able In addition, the metadata of millions of telephone to refute the allegation of an outright violation of the calls and e-mails were collected and stored in bulk law. The Court’s interpretation of the law, however, and without specific cause. During the initial years, remained highly controversial after its publication. this generated controversies within the administra- At the time, the decision was taken in secret, without tion about the legality of the measures, and the legal public knowledge or debate. justifications changed several times.56 In response to revelation of the In December 2005, the New York Times uncovered surveillance of telephone conversations, the FISA a program of the NSA to intercept calls on American Amendments Act was passed in 2008, legalizing key territory without judicial authorization and in vio- aspects of existing practices.61 Under Section 702, 57 lation of FISA. As a result, the Bush administration ministration declassified the program, it called it “Terrorist Surveillance Program”. 54 Daniel Severson, “American Surveillance of Non-U.S. 58 The reporters James Risen and Eric Lichtblau had had Persons: Why New Privacy Protections Offer Only Cosmetic the relevant information since October 2004, but under Change”, Harvard International Law Journal 56, no. 2 (2015): pressure from the government, the New York Times held back 465–514 (468–69). the story. See Risen, Pay Any Price (see note 26), 270. 55 The Bush administration viewed the FISA Court as an 59 Lesley Cauley, “NSA Has Massive Database of ’ unconstitutional limit on the president’s power. The partici- Phone Calls”, USA Today, 11 May 2006, pants of the War Council played prominent roles in this https://usatoday30.usatoday.com/news/washington/2006-05- decision. David Addington wrote the authorization, whereas 10-nsa_x.htm. John Yoo authored a legal memorandum confirming the 60 A further argument was a reference to the Patriot Act, legality of the order. See Savage, Power Wars (see note 18), which mandated that the collection and “business records” 183ff. did not require a court order. Since 56 When Jack Goldsmith took over as head of the OLC, he companies routinely collected and stored metadata, they reversed Yoo’s legal opinions and temporarily halted some were considered business records. To justify the e-mail meta- activities. However, he came up with new justifications for data collection, reference was made to the possibility under the measures and managed to convince the FISA Court of the original FISA to use “pen-register/trap-and-trace” tech- their legality. For more details, see Savage, Power Wars (see niques to collect telephone metadata. This justification was note 18), 192–95. then transferred to internet communications. 57 Internally, the measure was initially called “President’s 61 The FAA replaced the temporary Protect America Act Surveillance Program”; from 2005 onward, the press referred of 2007. It also granted immunity from civil or criminal to it as “Warrantless-Wiretapping Program”. When the ad- charges to the telecommunications companies involved.

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20 A changed debate after the Snowden revelations

the Attorney General, together with the Director of minimization procedures contain rules limiting the National Intelligence (DNI), may authorize communi- retention, dissemination, and use of the information. cation surveillance directed against non-US citizens In consultation with the FISA Court, the details of the abroad. Interception may take place on US territory as rules were repeatedly changed. One important rule long as at least one of the communicating persons is concerns the question of what criteria each agency a non-US person abroad. In contrast to the original has to apply in using selectors, that is, the search FISA, it is not necessary to establish a proper cause or terms that determine legitimate surveillance targets to obtain a warrant for individual surveillance meas- the scope of the information searched. The FBI, for ures. Moreover, unlike the previous Terrorist Surveil- example, as a domestic agency, has broader authority lance Program, it is not a requirement that surveil- to use the data of US citizens than institutions dealing lance targets have a link to terrorism; rather, any with foreign intelligence. It can search the data col- purpose of foreign intelligence is permitted. Inci- lected under Section 702, including information dental collection of data from US persons is legal, about US citizens, and even has full access to the raw as this is not the original objective of the monitoring data collected under Prism. Since this procedure measure. The use of the data thus collected is not circumvents the need for a court order, it is referred limited to national security investigations. The FBI to as a backdoor search.65 While the FISA Court ap- received extensive powers to use the data for law proves the various minimization procedures, only the enforcement.62 executive checks the compliance with these rules. The Two of the NSA’s most important programs – Up- FISA Court has repeatedly complained in the past that stream and Prism – are conducted under Section 702 the intelligence services did not observe the rules for of the FAA. Under Upstream, the NSA taps into the the protection of US persons.66 But despite repeated internet infrastructure – the so-called backbone of disregard of the guidelines, the Court has continued the internet – and searches all traffic according to to reauthorize the program. certain criteria. Data filtered out in this way is stored on its own servers. With Prism, providers of internet services, such as social media or cloud services, are A changed debate after the Snowden obliged to transmit the data of certain users to the US revelations authorities. Both programs are not limited to meta- data and can also access content. In the years between In the years immediately following the adoption of the adoption of the FAA in 2008 and the Snowden the FAA, which fell in Obama’s first term, the execu- leaks in 2013, the rules in Section 702 on how infor- tive – with the approval of the FISA Court – further mation collected can be searched, processed, and relaxed the restrictions on the handling of data.67 shared became less and less restrictive. Obama’s as- Only the leaking of information about the classified sumption of office did nothing to change this con- programs by reversed this trend. tinuous expansion of surveillance powers.63 The leaks sparked a broad public debate and had the Upstream and Prism also collect large amounts of effect of making the procedures somewhat more re- data from US citizens incidentally. In principle, the

FISA Court authorizes the activities under Section 702 Granick-Correcting-the-Record-Scope-of-702.pdf; see also on condition that the sensitive data of US persons is Office of the Director of National Intelligence, “Release of made unrecognizable before it is processed further; 2015 Section 702 Minimization Procedures”, IC on the Record however, the information does not have to be deleted. (11 August 2016), https://icontherecord.tumblr.com/post/ Each agency has its own minimization procedures, 148797010498/release-of-2015-section-702-minimization. 64 according to which sensitive data is handled. The 65 Granick, Reigning in Warrantless Wiretapping (see note 62), 16. 66 See e.g. Tim Johnson, “Secret Court Rebukes NSA for 62 Jennifer Granick, Reigning in Warrantless Wiretapping of 5-year Illegal Surveillance of U.S. Citizens”, McClatchy DC Americans New York (New York, NY: The Century Foundation, Bureau, 26 May 2017, http://www.mcclatchydc.com/news/ 16 March 2017), 16. nation-world/national/national-security/article152947909. 63 See Savage, Power Wars (see note 18), 560f. html; United States Foreign Intelligence Surveillance Court, 64 See Jadzia Butler and Jennifer S. Granick, “Correcting “Memorandum Opinion and Order”, 6 November 2015 the Record on 702: A Prerequisite for Meaningful Surveil- (classified), https://www.dni.gov/files/documents/20151106- lance Reform”, Just Security (15 September 2016): 10, https:// 702Mem_Opinion_Order_for_Public_Release.pdf. www.justsecurity.org/wp-content/uploads/2016/09/Butler- 67 See e.g. Savage, Power Wars (see note 18), 555–58.

SWP Berlin From Exception to Normalcy: The United States and the War on Terrorism October 2018

21 The Evolution of the War on Terror under Three Presidents

strictive again. In response to the controversy, Obama threats from transnational .69 Economic motives appointed a panel of five experts to review the sur- are excluded, unless national security issues are con- veillance regime – the President’s Review Group on cerned, such as the monitoring of sanctions regimes. Intelligence and Communications Technologies. It However, as this is a purely executive measure, it is published a report with numerous policy recommen- not certain that this policy will be maintained under dations, some of which were taken up. The revela- President Trump. tions also influenced two reports from the Privacy The Freedom Act brought perhaps the most signifi- and Civil Liberties Oversight Board (one on the tele- cant restrictions on surveillance to date. The law that phone metadata program under Section 215 of the was passed in June 2015 reformed the telephone Patriot Act, and one on surveillance under Section metadata program. The data is no longer transferred 702 of the FAA). The PCLOB was critical of the pro- to and stored on government servers; instead, the gram under Section 215, but it confirmed that the data remains with the telephone companies and is program under Section 702 helped to identify ter- kept for 180 days. Data is only transferred to the rorists and thwart planned attacks. The board never- security authorities on the basis of a FISA Court war- theless made a number of proposals to improve com- rant. Such warrants, unlike before, must be based on pliance and increase transparency. It recommended a specific and sufficiently narrow selection criterion making FISA Court decisions, minimization proce- to avoid collection in bulk.70 When the FISA Court dures, and statistics on data collection public. For the decides on surveillance measures, a “Special Advo- most part, the suggestions were taken up.68 Since the cate” representing the privacy interests of citizens is PCLOB’s mandate relates to the anti-terrorist aspects heard in addition to the agency making the request. of the programs, it only touched marginally on the In addition, the requirements for the publication of impact of Section 702 on law enforcement. FISA Court rulings are being expanded. The reform was only possible because the existing legislation had With the 2014 Presidential Policy a sunset clause leading to its expiration on June 1, Directive, Obama recognized for the 2015. Without new legislation, there would have first time that foreign citizens also been no legal basis to continue the surveillance pro- have a right to privacy. gram; therefore, critics in Congress of the existing practices were able to use their power to block the Two policy changes would have been inconceivable reauthorization to force reforms. without the Snowden revelations. On January 17, 2014, However, in January 2018, Section 702 of the FAA, President Obama issued Presidential Policy Directive which also contained a sunset clause and had to be 28 (PPD-28), which establishes further guidelines on renewed, was reauthorized without any significant espionage and the surveillance of foreign targets. The changes, although the statute has been subject to on- directive refers to measures taken under Executive going criticisms since the Snowden revelations. The Order 12333, that is, in accordance with the inherent section allows the FBI to search the data of US persons authority of the executive for foreign intelligence. collected “incidentally” in the surveillance of foreign Although PPD-28 largely codified existing practice, it intelligence targets in a virtually unrestricted manner was recognized for the first time that foreign citizens and to pass it on to local police departments. These also have a right to privacy, which can only be in- far-reaching implications did not prevent a bipartisan fringed upon in special circumstances. Similar to US citizens, minimization rules are introduced to help protect the privacy of innocent people. In addition, espionage is limited to six purposes. It is authorized 69 The White House, “Presidential Policy Directive/PPD-28, to detect: foreign espionage; terrorist threats; prolif- Subject: Signals Intelligence Activities”, 17 January 2014. See eration of of mass destruction; threats to also Benjamin Wittes, “The President’s Speech and PPD-28: cyber security; threats to the US and its allies; and A Guide for the Perplexed”, , 20 January 2014, https:// www.lawfareblog.com/presidents-speech-and-ppd-28-guide- perplexed; Savage, Power Wars (see note 18), 605. 68 Privacy and Civil Liberties Oversight Board, “Recommen- 70 See e.g. Florian Gawehns and Johannes Thimm, Ein biss- dations Assessment Report”, 5 February 2016, https://www. chen Freiheit. Was die Verabschiedung des Freedom Act durch den pclob.gov/library/Recommendations_Assessment_Report_ US-Kongress bedeutet, SWP-Aktuell 56/2015 (Berlin: Stiftung 20160205.pdf. Wissenschaft und Politik, June 2015).

SWP Berlin From Exception to Normalcy: The United States and the War on Terrorism October 2018

22 Targeted killing

majority in Congress from extending the law in its missions over the past 17 years shows no clear trends. existing form for another six years.71 They vary from country to country and within coun- In conclusion, with respect to surveillance, the tries over time.72 One thing is clear: The increasing overall patterns are the same as with the detention number of armed drones available was initially and interrogation program: The Bush administration, accompanied by a dramatic increase in air strikes, at first, tried to circumvent the law in secret. After with a temporary peak in 2010. some of the clandestine surveillance activities became The lethal use of drones stands paradigmatically public knowledge, a legal basis was created for them. for the normalization of extraordinary methods in Essentially, the existing practice was legalized with- the war on terror. Initially, the CIA conducted drone out major restrictions. Although the Obama adminis- operations under strict secrecy as covert operations. tration put the existing programs on a more solid and The US government long maintained its policy of not formal legal basis, it initially expanded the govern- officially acknowledging such operations, even ment’s powers. Only when the extent of the surveil- though they had long been an open secret, reported lance became public through the Snowden leaks were by the media, and sometimes confirmed anonymously there some course corrections. The bottom line, how- by government officials.73 By refusing to acknowledge ever, is that the possibilities available to government the attacks, the government avoided taking respon- agencies – in collecting and storing communications sibility for mistakes and the killing of innocent data as well as use by different agencies – go far people. More recently, the government has officially beyond what was allowed before 9/11. admitted to the use of drones for targeted killings. In 2010, it began to acknowledge the policy in general, and since 2016, it has also provided official informa- Targeted killing tion on individual strikes.74 This did not result in any significant public criticism to such operations. The clearest evidence that the term “war on terror- Most recently, President Trump announced that he ism” is not a metaphor is the policy of targeted would relax the guidelines for drone strikes. Regard- killings. The use of lethal force in the fight against ing the government’s assessment of the fundamental terrorism is not limited to areas or time periods in and necessity of targeted killings, the con- which the US is obviously involved in hostilities. In tinuity between the various incumbents prevails. The addition to the well-known theaters of war in Afgha- nistan, Iraq, and Syria, where the US is engaged in 72 Three organizations attempting to systematically keep ongoing military operations on the basis of inter- track of armed drone attacks by the US are the Federation national law for armed conflict (which, under certain for the Defense of Democracies, which runs the Long War circumstances, permits lethal force against enemy Journal, https://www.longwarjournal.org/us-airstrikes-in-the- combatants), targeted killings have taken place in long-war; the New America Foundation, http://securitydata. Libya, Pakistan, Somalia, and Yemen since 9/11. The newamerica.net/; and the Bureau of Investigative , legal justification for them has also been the 2001 https://www.thebureauinvestigates.com/stories/2017-01-01/ authorization of military force. drone-wars-the-full-data. For an overview, see Micah Zenko, Questioning Obama’s Drone Deaths Data (New York, NY, and Washington, D.C.: Council on Foreign Relations, 1 July The lethal use of drones stands 2016), https://www.cfr.org/blog/questioning-obamas-drone- paradigmatically for the normali- deaths-data. In 2016, the Obama administration first pub- zation of extraordinary methods. lished official numbers about drone attacks and their vic- tims; however, independent experts consider these numbers To eliminate suspected terrorists, both special as too low: Director of National Intelligence, Summary of In- forces as well as air strikes from manned and un- formation Regarding U.S. Counterterrorism Strikes outside Areas manned aircraft are employed. Both the military and of Active Hostilities (June 2016), https://www.dni.gov/files/ the CIA use drones, as unmanned aerial vehicles documents/Newsroom/Press%20Releases/DNI+Release+on+ (UAVs) are commonly known. The number of drone CT+Strikes+Outside+Areas+of+Active+Hostilities.PDF. 73 See Cora Currier, “How the Gov’t Talks about a Drone Program It Won’t Acknowledge Exists”, ProPublica, 13 Sep- 71 Charlie Savage, “Congress Approves Six-Year Extension tember 2012, https://www.propublica.org/article/how-the- of Surveillance Law”, New York Times, 18 January 2018, govt-talks-about-a-drone-program-it-wont-acknowledge. https://nyti.ms/2DjAcYl. 74 Ibid.

SWP Berlin From Exception to Normalcy: The United States and the War on Terrorism October 2018

23 The Evolution of the War on Terror under Three Presidents

legal and administrative basis for targeted killings has carry out clandestine operations, including targeted been repeatedly modified. But beyond questions of killings.78 style, decisions on targeted killings seem to have been Technological led to a growing reliance on shaped above all by tactical considerations and tech- unmanned aerial vehicles.79 UAVs allow for the sur- nical possibilities, regardless of who is in . veillance of potential targets from the air. This helped to compensate for the lack of human intelligence on Al-Qaeda. Drones are equipped with laser-guided mis- Origins and evolution of the siles, allowing them to carry out relatively precise air practice of targeted killing strikes. They are controlled remotely from military bases within the US, so there is no risk of US troop Already under President , the elimination losses.80 They also made it possible to carry out opera- of terrorists – and the immediate threat they posed tions on short notice in territories without any US to the United States – was considered self-defense personnel on the ground. As more and more drones and did not fall under the prohibition of political became available, the number of such attacks rose that had been in force since Gerald sharply. It remains controversial as to whether the Ford’s time in office.75 According to Richard Clark – increasing difficulty in arresting and detaining terror at the time the White House’s anti-terrorism – suspects without due process – because of public Clinton used the instrument very rarely.76 Potential criticism and resistance from Congress and the targets for killing had to undergo a strict review pro- courts – also contributed to the rising number of cess within the CIA as well as the executive branch, drone strikes.81 and each operation had to be personally approved by In armed conflicts that – based on international the president. After 9/11, George W. Bush delegated humanitarian law – allow for the use of deadly force the authority to hunt down and kill alleged terrorists against the enemy, armed drones are just another in- to the head of the CIA’s Counterterrorism Center. Tar- geted killings have become a central part of the against Al-Qaeda.77 In 2004, Defense Secretary Rums-

feld also authorized the military’s special forces to 78 According to the journalist Mark Mazzetti, Rumsfeld issued a secret order, authorizing the Joint Special Opera- tions Command to carry out secret operations of espionage, capture, and killing in more than 12 countries, form to the . See Mark Mazzetti, The Way of the 75 When investigations by Congress in the 1970s uncovered Knife. The CIA, a Secret Army, and a War at the Ends of the Earth numerous attempts by the CIA – including on (New York, NY: Penguin Press, 2013), 128. foreign heads of government – President Ford issued Execu- 79 See Micah Zenko, Reforming U.S. Policies, tive Order (E.O.) 11905 on 19 February 1976. Section 5(g) Council Special Report no. 65 (New York, NY, and Washing- bans political assassinations. Subsequent administrations ton, D.C.: Council on Foreign Relations, January 2013). continued the prohibition, even as they repeatedly violated 80 The use of Predator drones was first tested shortly before it in specific cases. E.O. 12036 Sec. 2-305 from 26 January 9/11. The first air strike with a drone took place on 4 Febru- 1978 (issued under President ) outlawed “assas- ary 2002 in Afghanistan, the first use outside a conflict zone sinations” in general. In E.O. 12333, Sec. 2.11, from 4 De- on 4 November 2002 in Yemen. See John Sifton, “A Brief cember 1981, President confirmed this History of Drones”, The Nation, 7 February 2012, https:// policy, which is still valid with only slight modifications to www.thenation.com/article/brief-history-drones. this day. See Elizabeth B. Bazan, Assassination Ban and E.O. 81 President Obama declared in 2013: “America does not 12333: A Brief Summary, CRS Report for Congress RS 21037 take strikes when we have the ability to capture individual (Washington, D.C.: CRS, 4 January 2002), https://fas.org/irp/ terrorists; our preference is always to detain, interrogate, crs/RS21037.pdf. and prosecute.” The White House, “Remarks by the President 76 Scahill, Dirty Wars (see note 15), 5f. at the National Defense University”, 23 May 2013, https:// 77 One anonymous official put it this way: “Lethal Opera- obamawhitehouse.archives.gov/the-press-office/2013/05/23/ tions that were unthinkable pre-September 11 are now remarks-president-national-defense-university. Mark Maz- underway.” See Bob Woodward, “CIA Told to Do ‘Whatever zetti, however, writes (Mazzetti, The Way of the Knife [see note Necessary’ to Kill Bin Laden”, Washington Post, 21 October 78], 126) that internal deliberations within the CIA tilted 2001, http://www.washingtonpost.com/wp-dyn/content/ more towards kill missions with every setback of the deten- article/2007/11/18/AR2007111800655pf.html.. tion and interrogation program.

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24 Greater transparency and more killings

strument of warfare.82 This has been the case with the in Yemen in 2017.86 For a long time, the US leader- military intervention in Afghanistan.83 But as with ship did not officially acknowledge the drone pro- targeted killings in general, drone attacks are not lim- gram, not least because the operations were quietly ited to areas of active hostilities. The Bush administra- condoned by the governments of Yemen and Pakis- tion interpreted the authorization of military force tan. Therefore, Washington did not have to publicly passed by Congress to mandate the hunt of Al-Qaeda defend its policy or take responsibility for civilian members and their allies everywhere. victims.87 In addition to the air strikes, targeted kil- lings by special forces continued; the best-known case The number of drone strikes reached is the elimination of in his hiding a temporary peak in 2010. place in , Pakistan.88 This occasion also showed that the US government was willing to selec- Drone strikes frequently took place in Pakistan, tively acknowledge killing missions when it suited its whose region with Afghanistan serves as a political interests. retreat for fighters of Al-Qaeda and the Taliban. Yemen, used by Al-Qaeda in the Arabian Peninsula (AQAP) as a base of operations because of its weak Greater transparency and more killings government, was also a frequent target. According to Long War Journal data, the number of annual drone Under Obama, the number of drone strikes initially attacks in Pakistan was in the single digits up to and continued to increase.89 He also continued the con- including 2007, before rising to 35 in 2008, the last troversial practice of signature strikes, in which tar- year of Bush’s second term.84 This trajectory con- gets are selected on the basis of patterns of suspicious tinued under Obama until the number of strikes behavior without actually knowing the identity of reached its peak in 2010, with 117 attacks. Since the targeted persons.90 At the same time, the Obama then, the number has declined steadily, mainly due to Al-Qaeda’s weakened position in Pakistan; in 2016 and 2017 it was back in the single digits.85 However, 86 See “US in the Long War” (see note 84). President Trump has declared that he will renew the 87 Estimates of civilian victims differ widely. According to focus of the war on terror on Pakistan. In Yemen, US government figures, between 64 and 116 non-combatants drone attacks numbered in the double digits for the were killed “outside of areas of active hostilities” between first time in 2011; since 2012 there have been be- early 2009 and the end of 2015 (before that no official fig- tween 20 and 40 of them per year. According to the ures are available). The three non-governmental organiza- Long War Journal, more than 100 air strikes took place tions keeping track of drone strikes put the number for the same time period between 184 and 570 killed civilians. See Zenko, Questioning Obama’s Drone Deaths Data (see note 72). For 82 For an assessment of the international law implications, the time period since 2001, the three organizations estimate see Peter Rudolf and Christian Schaller, “Targeted Killing”. Zur on average 474 killed civilians. Examples of civilians killed völkerrechtlichen, ethischen und strategischen Problematik gezielten by mistake can be found, for example, in Open Society Jus- Tötens in der Terrorismus- und Aufstandsbekämpfung, SWP-Studie tice Initiative, “Death by Drone. Civilian Harm Caused by 1/2012 (Berlin: Stiftung Wissenschaft und Politik, January U.S. Targeted Killings in Yemen”, Open Society Foundations, 2012). April 2015, https://www.opensocietyfoundations.org/reports/ 83 Yet, there is evidence that special forces systematically death-drone. violated the laws of war in their pursuit of terrorists in Af- 88 Depending on the area of operation, missions take place ghanistan. See Matthew Cole, “The Crimes of Seal Team 6”, with or without the consent of the host government. The con- , 10 January 2017; Scahill, Dirty Wars (see note 15). cept of safe harbors is central to the legal analysis. On the 84 “US Airstrikes in the Long War”, FDD’s Long War Journal, evolution of the legal literature on this type of intrusion on no date, https://www.longwarjournal.org/us-airstrikes-in-the- state , see Theresa Reinold, “State Weakness, Irregu- long-war. lar Warfare, and the Right to Self-Defense Post-9/11”, Ameri- 85 Greg Miller, “Why CIA Drone Strikes Have Plummeted”, can Journal of International Law 105, no. 2 (2011): 244–86. Washington Post, 16 June 2016, http://wapo.st/23e4a6O. Obama’s 89 On this point and the following, see Peter Rudolf, Präsi- decision to transfer the responsibility for drone operations dent Obamas Drohnenkrieg, SWP-Aktuell 37/2013 (Berlin: Stif- from the CIA to the armed forces contributed to the drop. tung Wissenschaft und Politik, June 2013). Another possible reason is the shift in focus to fighting the 90 See also Micah Zenko, Targeted Killings and Signature after 2014. Strikes (New York, NY, and Washington, D.C.: Council on

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25 The Evolution of the War on Terror under Three Presidents

administration gradually took steps to make its policy In 2013, Obama restricted the conditions for such of targeted killings more transparent and to provide operations in presidential policy guidance. In addi- a more precise legal justification for the policy. In tion to their being an immediate threat, capturing the March 2010, State Department legal adviser Harold target must be considered impossible; there must be Koh publicly laid out the government’s view for the “near certainty” that no civilians will be injured or first time that the practice of targeted killings by killed; and the host government should prove to be drones was in line with the law.91 In the following not able or willing to take effective action against the years, members of the administration continued to threat. At the same time, Obama reduced the CIA’s go on record to elaborate on the legal framework.92 role in conducting drone strikes and transferred As their statements showed, from a US government the responsibility to the military.95 The details of the perspective, there were not just the traditional cat- legal justifications and the decision-making processes egories of combatants – members of an enemy force to authorize targeted killings kept changing.96 Since and individuals actively involved in hostilities – who 2013, Obama has changed the status of certain regions could legally be targeted with lethal force. Relying on in Libya several times. At times he declared them the right of self-defense under Article 51 of the UN areas of active combat (and thus relaxed the standard Charter, the US claimed the right to also kill persons for the use of drones); at other times he lifted this that constitute a “continuing, imminent threat.” In designation again.97 In its last public statement, the contrast to the plain meaning of the word “immi- Obama administration stated that the wording used nent,” the term is interpreted broadly and does not in the AUMF – “forces associated with Al-Qaeda” – require any evidence that a specific attack is under- which applies to targets outside of areas of active way.93 Such persons may also be targeted outside hostilities, includes, in its view, the following groups: areas of active hostilities. It is this category that is Al-Qaeda and the Taliban and certain allied groups particularly controversial because, in doing so, the in Afghanistan; Al-Qaeda in the Arabian Peninsula US government is claiming the right to kill terror (especially in Yemen); Al-Shabab in Somalia; members suspects wherever it determines that the host govern- of Al-Qaeda in Libya; Al-Qaeda in Syria; the so-called ment itself is unwilling or unable to act against Islamic State.98 Who falls within the definition laid alleged terrorists.94 down in the AUMF has never been definitively resolved, so the executive’s interpretation of the authorization stands. By failing to intervene, the legislature and the Foreign Relations, 16 July 2012), https://www.cfr.org/blog/ judiciary de facto gave the president the opportunity targeted-killings-and-signature-strikes. to add more and more groups to the list of associated 99 91 For a critical analysis of this legal position, see Christian forces. Schaller, “Using Force Against Terrorists ‘Outside Areas of Active Hostilities’. The Obama Approach and the Bin Laden Raid Revisited”, Journal of Conflict & Security Law 20, no. 2 (2015): 195–227. https://www.newyorker.com/news/news-desk/assassination- 92 See Schmitt, “U.S. Commando Killed in Yemen” (see american-language. note 3); The White House, “Report on the Legal and Policy 95 Charlie Savage and Peter Baker, “Obama, in a Shift, to Frameworks Guiding the United States’ Use of Military Force Limit Targets of Drone Strikes”, New York Times, 22 May 2013, and Related National Security Operations”, December 2016, https://nyti.ms/2nGjKfn. 44–48 (Appendix), https://obamawhitehouse.archives.gov/ 96 See Savage, Power Wars (see note 18), 245–49, 254–57. sites/whitehouse.gov/files/documents/Legal_Policy_Report.pdf. 97 White House, “Report on the Legal and Policy Frame- 93 White House, “Report on the Legal and Policy Frame- works” (see note 92), 25; Charlie Savage, “U.S. Removes Libya works” (see note 92), 9; Rudolf, Präsident Obamas Drohnenkrieg from List of Zones with Looser Rules for Drone Strikes”, New (see note 89), 3. York Times, 20 January 2017, https://nyti.ms/2ka2hqJ. 94 White House, “Report on the Legal and Policy Frame- 98 White House, “Report on the Legal and Policy Frame- works” (see note 92), 10. On page 20, the report further con- works” (see note 92), 5. tains the tautological statement: “using targeted lethal force 99 A bipartisan bill introduced in the Senate in 2018 to against an enemy consistent with the law of armed conflict replace the old authorization of military force with a new does not constitute an ‘assassination.’ Assassinations are un- one, adopts this list and adds the and lawful killings and are prohibited by Executive Order.” For a Al-Qaeda in the Islamic Maghreb to it. See Jon Schwarz, critical assessment, see Elliot Ackerman, “Assassination and “Cure Worse Than Disease: Bill to Restrict Trump’s War the American Language”, New Yorker, 20 November 2014, Powers Would Actually ‘Endorse a Worldwide War on Ter-

SWP Berlin From Exception to Normalcy: The United States and the War on Terrorism October 2018

26 First trends under Trump

Overall, Obama’s policy of targeted killings con- by Trump. He is thinking about allowing the CIA to firms the thesis of journalist Charlie Savage: that carry out drone missions once again, even in areas of Obama was more interested in establishing formal active hostilities.103 justifications for this policy under the rule of law These changes have not yet been officially con- than in substantially strengthening civil and human firmed, and little is known about their practical im- rights. The bottom line is that, despite a more restric- pacts. If the reports are correct, the measures will tive interpretation of the legal situation, Obama still probably lead to an overall increase in air strikes and, found a legalistic way to justify any desired policy – inevitably, to more .104 However, including the order to use lethal force against anyone they would not represent a fundamental departure he considered a threat.100 from the rules currently in force. Trump is now using the flexible legal framework that the executive branch initially claimed under Bush for a more aggressive First trends under Trump policy. That even the observers who were close to the Obama administration do not consider this to be very According to press reports, President Trump has dramatic is another indication of the progressive nor- relaxed the rules of engagement. He is said to have malization of this endless war.105 It is also remarkable declared regions in Yemen and Somalia as areas of how little resistance the program has generated in the active hostilities, where the lower standards of inter- American public to date. Only human rights organi- national humanitarian law apply and where the mili- zations such as , Human Rights tary is allowed to carry out operations independent- ly.101 In addition, in a document entitled “Principles, Standards, Procedures,” it is said that Trump has ex- 103 Gordon Lubold and Shane Harris, “Trump Broadens panded the scope of possible targets for killings out- CIA Powers, Allows Deadly Drone Strikes”, Wall Street Journal, side of active combat zones. The preconditions to 13 March 2017, http://on.wsj.com/2mlgyS9; Eric Schmitt and determine the existence of a “continuous, immediate Matthew Rosenberg, “C.I.A. Wants Authority to Conduct Drone Strikes in Afghanistan for the First Time”, New York threat” is said to have been loosened so that lower- Times, 15 September 2017, https://nyti.ms/2y2BALJ. ranking members of terrorist organizations can be 104 Whereas US Central Command in February 2017 esti- killed. Operations also no longer need to be approved mated the number of accidentally killed civilians in the fight 102 by high-ranking members of the US government. against IS in Iraq and Syria (areas of active hostilities) to be Obama’s efforts since 2013 to reduce the CIA’s role in 199, in January of 2018, the estimate had already jumped drone operations also appear to have been reversed to 831. US Central Command, “CJTF-OIR Monthly Civilian Report”, 25 January 2018, http://www.centcom.mil/ ror’”, The Intercept, 21 April 2018, https://theintercept.com/ MEDIA/NEWS-ARTICLES/News-Article-View/Article/1423091/ 2018/04/21/donald-trump-war-powers/. cjtf-oir-monthly-civilian-casualty-report; see also US Central 100 Thomas Gregory points out that in the US debate about Command, “CJTF-OIR Monthly Civilian Casualty Report”, targeted killings, the legal contributions do not have a mod- 2 February 2017, http://www.inherentresolve.mil/News/ erating effect on the use of force. The legal debate depoliti- Article/1068517/cjtf-oir-monthly-civilian-casualty-report/. cizes the controversy about the appropriate use of force and According to these figures, almost three-quarters of the delegitimizes the opposition. Thomas Gregory, “Drones, Tar- civilian casualties acknowledged by the military fall into geted Killings, and the Limitations of International Law”, Trump’s term. It should be noted, however, that the largest International Political Sociology 9, no. 3 (2015): 197–212. offensives against IS – the liberation of Raqqa and Mosul – 101 Eric Schmitt, “U.S. Air Campaign in Yemen Killed happened during this period. The actual numbers are much Guantánamo Ex-Prisoner”, New York Times, 6 March 2017, higher. See Azmat Khan and Anand Gobal, “The Uncounted”, https://nyti.ms/2n8dhXs; Charlie Savage and Eric Schmitt, New York Times Magazine, 16 November 2017, https://nyti.ms/ “Trump Administration Is Said to Be Working to Loosen 2juNRXb; Samuel Oakford, “The U.S. Is in Denial about the Counterterrorism Rules”, New York Times, 12 March 2017, Civilians It’s Killing in Syria”, Foreign Policy, 31 August 2017, https://nyti.ms/2mzNhoH; Charlie Savage and Eric Schmitt, http://foreignpolicy.com/2017/08/31/the-u-s-is-in-denial-about- “Trump Eases Combat Rules in Somalia Intended to Protect the-civilians-its-killing-in-syria/. For recent numbers, see Civilians”, New York Times, 30 March 2017, https://nyti.ms/ https://airwars.org/. 2oCu6ds. 105 Luke Hartig, “New Drone Rules Ignore Trump Crazy 102 Charlie Savage and Eric Schmitt, “Trump Poised to Talk on Terrorism”, Newsweek, 22 September 2017, http:// Drop Some Limits on Drone Strikes and Commando Raids”, www.newsweek.com/new-drone-rules-ignore-trump-crazy- New York Times, 21 September 2017, https://nyti.ms/2jRoPSa. talk-terrorism-669516.

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27 The Evolution of the War on Terror under Three Presidents

Watch, and the Open Society Institute have issued critical statements. Public opinion supports the drone program, and although experts question specific aspects of the program, such as signature strikes, they do not question the basic policy of targeted killings outside of combat areas.106

106 On public opinion, see Alyssa Brown and Frank New- port, “In U.S., 65% Support Drone Attacks on Terrorists Abroad”, Gallup, 25 March 2013, http://www.gallup.com/poll/ 161474/support-drone-attacks-terrorists-abroad.aspx; “Public Continues to Back U.S. Drone Attacks”, Pew Research Center, 28 May 2015, http://www.people-press.org/2015/05/28/public- continues-to-back-u-s-drone-attacks/. On reform proposals, see Luke Hartig, The Drone Playbook (New York, NY: New America, August 2016), https://na-production.s3.amazonaws. com/documents/Drone_Playbook_Essay_8.16.pdf; Zenko, Reforming U.S. Drone Strike Policies (see note 79).

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28 Expansion of the national security state after 9/11

The National Security State and the Power of the Executive

The experiences during 16 years of global war against Strategic Services (OSS) into the CIA, intelligence capa- terrorism show that the American system of “checks bilities initially created to conduct wartime reconnais- and balances” is not without flaws. In domestic poli- sance of enemy forces were permanently institution- tics, Congress and the courts keep the executive branch alized. Industry and science were also recruited to con- in check, and this system of “separated institutions to the effort to strengthen America’s defense sharing powers” (Richard Neustadt) often creates grid- capabilities. The executive branch, whose powers are lock. On foreign policy, however, the executive branch enumerated only after Congress in the Constitution, enjoys a great level of autonomy, especially on mat- was elevated in status and became of ters of national security. When there is a strong feel- national security in charge of a newly established ing of insecurity, the legislative and judicial branches apparatus.108 are reluctant to limit executive power. In line with the saying “inter arma silent leges” (“when the weapons speak, the law falls silent”), US Expansion of the national security state presidents have usually interpreted their powers ex- after 9/11 pansively in times of war. Examples are the suspen- sion of the right of habeas corpus by Abraham Lincoln When the new dimension of terrorism became appar- during the American and the ent after 9/11, it led to a similar dynamic as during of US citizens of Japanese descent in camps during the rise of the in the late 1940s. Terrorism Two. In most cases, such extreme meas- was perceived as an existential threat, which led to ures were ended when the wars did and – with some an unprecedented expansion of the security bureau- historical distance – were also considered to be mor- cracy. ally wrong. However, the war on terror has no such Since the 17 agencies109 that make up the intelli- clear end. gence community are financed from various budget When the became a major threat lines, most of which are classified, exact figures on at the beginning of the Cold War, the US reacted by the cost are not available. In recent years, the base- building up a national security state that shifted lines for the Military Intelligence Budget and the power among the branches of government to the exe- National Intelligence Budget, which covers the civil- cutive. With the exception of the State Department, ian agencies (first among them the CIA), have been all major institutions of the national security bureau- published. For the 2018 fiscal year, the request for cracy go back to the National Security Act of 1947.107 the National Intelligence Budget was $57.7 billion The various services of the armed forces were inte- and $20.7 billion for the Military Intelligence Budget; grated under the Defense Department, which suc- together, they exceed the amount approved for the ceeded the War Department. The establishment of previous year by around $5 billion, which is close to the National Security Council led to the prioritization of security considerations in the executive decision- making process. Moreover, in turning the Office of 108 See Daniel Yergin, Shattered . The and the National Security State (Harmondsworth: Penguin Books, 1977), 6. 107 See Douglas T. Stuart, Creating the National Security State. 109 Depending on whether the Office of the Director of A History of the Law That Transformed America (Princeton, NJ: National Intelligence is included in the count, there are Princeton University Press, 2008). references to 16 or 17 organizational units.

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29 The National Security State and the Power of the Executive

the 2010 record of $80.1 billion. Between 1997 and conduct.115 In 2004, the position of Director of 2010, the combined intelligence budget more than National Intelligence was created to better coordinate tripled from the original $26.6 billion.110 Within the the various agencies. But the DNI has only a small CIA, the Counterterrorism Center grew from 300 to staff, does not directly command the different agen- 2,000 employees in the first 10 years after 9/11; it now cies, and has no control over their personnel policy. accounts for 10 percent of the workforce. Of the CIA Only the CIA director reports directly to the DNI, and analysts, 20 percent work as “targeters” who look for only the civilian part of the budget is under the DNI’s key individuals in terrorist networks who can either supervision. Beyond that, the various organizations be recruited or are designated for capture or kill- each report to their respective departments. ing.111 The Defense Intelligence Agency has grown from 7,500 employees in 2002 to 16,500 in 2010, and in the FBI, the number of persons dealing with State of exception terrorism has tripled.112 In addition to the state bureaucracy, numerous pri- Following the traumatic experience of 9/11, not only vate companies are involved. In addition to the tra- did the security state grow, but the existing oversight ditional defense industry, which has adapted to the system was also suspended. Although the US Consti- newly emerging business of fighting terrorism, a num- tution was never formally suspended after the attacks ber of new private contractors, particularly in the IT in New York and Washington, there is much to sug- sector, provide services and profit financially from the gest that the situation in the first years after 9/11 re- war on terror. According to journalists Dana Priest sembled a state of exception. In his book of the same and , some 1,000 government agencies name, the philosopher describes and 2,000 private companies are involved in the fight the state of exception as “no man’s land between pub- against terrorism at the federal level alone.113 They lic law and political fact, and between the juridical estimate that 854,000 people have a “top secret” order and life.”116 He refers to a military order issued security clearance.114 by the president on November 13, 2001, which cre- The resulting web of organizations and agencies ated the basis for the unlimited detention of foreign raises questions of coordination and control. The sys- terror suspects and their trial by military commissions. tem of compartmentalized secrecy and access to sen- In it, Bush decreed: “I have determined that an extra- sitive information on a need-to-know basis makes ordinary emergency exists for national defense pur- effective supervision difficult and permits for mis- poses, that this emergency constitutes an urgent and compelling government interest, and that issuance of this order is necessary to meet the emergency.”117 110 The combined intelligence budget of 1997 became public through court records. With $26.6 billion it was at a historic low, after years of cuts in the wake of the so-called 115 Priest and Arkin (Top Secret America [see note 14]) give peace dividend after the end of the Cold War. Most likely, many examples of waste, problems with the chain-of-com- even before 9/11, the budget began to increase again. The mand, and the duplication of tasks. For example, persons baseline budgets of the National Intelligence Program and involved in the so-called Special Access Programs in the De- the Military Intelligence Program are published; they include fense Department have to keep some information secret – most – but not all – of the money spent. See Federation even from their superiors – and the exchange of informa- of American Scientists, “Intelligence Budget Data”, FAS Intel- tion between different units is restricted. During the Cold ligence Resource Program, https://fas.org/irp/budget/; Anne War, such “hyper-compartmentalization” sometimes had the Daugherty Miles, Intelligence Community Spending: Trends and effect that some within intelligence agencies came to believe Issues, CRS Report for Congress R44381 (Washington, D.C.: the and their colleagues had pro- CRS, 8 November 2016). duced for the public. See Timothy Melley, The Covert Sphere. 111 Greg Miller and Julie Tate, “CIA Shifts Focus to Killing Secrecy, Fiction, and the National Security State (Ithaca, NY: Cor- Targets”, Washington Post, 1 September 2011, https://www. nell University Press, 2012), 61. washingtonpost.com/world/national-security/cia-shifts-focus- 116 Giorgio Agamben, State of Exception (, IL: Uni- to-killing-targets/2011/08/30/gIQA7MZGvJ_story.html. versity of Chicago Press 2005), 1. 112 Priest and Arkin, Top Secret America (see note 14), 37. 117 Military Order of November 13, 2001 issued by George 113 Priest and Arkin, Top Secret America (see note 14), W. Bush, “Detention, Treatment, and Trial of Certain Non- 86–87. Citizens in the War Against Terrorism”, reprinted in The Tor- 114 Priest and Arkin, Top Secret America (see note 14), 158. ture Papers, ed. Greenberg and Dratel (see note 11), 25–28.

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30 Secrecy

By declaring suspects unlawful such as , were even legally sanc- combatants, they are denied tioned once they were discovered. As described above, basic human rights. the Obama administration had put those measures it wanted to continue on a more solid legal footing. The fact that the rule of law has effectively been This was accomplished either by providing new, more suspended supports the argument that this situation sophisticated interpretations of the law, or by con- constituted a state of exception.118 The situation made vincing Congress or the courts to support the policy. it possible to give orders, introduce rules, and estab- One contributing factor was that many critics of the lish procedures that are incompatible with funda- Bush administration joined the Obama administra- mental principles of the rule of law, the US Constitu- tion and thus ceased their criticism.120 Moreover, tion, and international law. The “black sites” and the the Democrats in Congress, as well as some critical detention center in Guantánamo created areas out- judges, trusted Obama – the constitutional lawyer side the law that were beyond the reach of the courts. and former Bush critic – more in this field. In Guantánamo, to this day there are limits on the Despite all course corrections and new regulations, application of US law. By declaring suspects unlawful essential elements of the original state of emergency combatants, they are denied basic human rights. have gradually been institutionalized and become Moreover, by circumventing regular decision-making part of the new normal. This applies in particular to processes and operating in secret, checks both within the war paradigm, the claim to executive power, and the executive branch and between the branches are the excessive use of secrecy. rendered ineffective.119 Since this state of exception has never been offi- cially declared, there is also no clear marker for end- Secrecy ing it. Civil society (press, NGOs, lawyers), government officials, the courts, and Congress have gradually The excessive use of secrecy has not only given rise exposed the problematic methods and forced the dis- to inefficiencies in the bureaucracy of the national continuation of some of the most extreme practices security state, but it also raises more fundamental through their resistance. At the same time, however, problems. The clear violations of the law in the era methods such as unlimited imprisonment and tar- immediately after 9/11 under the cover of secrecy geted killing have been normalized and cemented in have given way to a practice of exploiting legal gray practice, despite political resistance. Other measures, areas. In principle, the separation of powers also applies 118 See Agamben, State of Exception (see note 116), 1: “if ex- in the fight against terrorism, and since the reforms ceptional measures are the result of periods of political crisis of the 1970s, Congress has had relatively far-reaching and, as such, must be understood on political and not juri- oversight powers. Since 1980, the intelligence agen- dico-constitutional grounds [...], then they find themselves cies have been required by law to inform the Senate in the paradoxical position of being juridical measures that and House Intelligence Committees – newly created cannot be understood in legal terms, and the state of excep- following the recommendations of the Church Com- tion appears as the legal form of what cannot have a legal mittee – of all their activities, including covert form.” operations.121 In practice, however, the members of 119 Building on Agamben, Mark Danner identifies the state of exception based on eight policies: (1) declaring the war on terror; (2) defining this new war as unbounded in space and 120 Examples include Marty Lederman David Barron, who time; (3) redefining terrorists as unlawful combatants, thus joined the Department of Justice, as well as Harold Koh, depriving them of the protections of the laws of war; (4) im- who as State Department Legal Advisor, defended Obama’s posing in both law enforcement and national security the so- counter-terrorism policies. called preventive paradigm; (5) grounding the legitimacy of 121 Intelligence Authorization Act for Fiscal Year 1981, Pub. L. much of the state of exception on the president’s “inherent 96-450, 14 October 1980. See also McCormick, American powers”; (6) making use, in multifarious and creative ways, Foreign Policy and Process (see note 13), 416–24. McCormick of the power of secrecy; (7) improvising solutions, often ig- (ibid., 418) points to the following as contributing factors in noring expertise with amateurish results; (8) embedding the the growing interest of Congress in intelligence oversight: rhetoric of the war on terror in political struggle for partisan the fiasco of the Bay of Pigs ; the increase of covert gains. See Mark Danner, Spiral. Trapped in the Forever War operations during the ; the CIA’s involvement (New York, NY: Simon & Schuster, 2016), 21–23. in the destabilization of the Allende government in Chile;

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31 The National Security State and the Power of the Executive

the Committee are overwhelmed with holding in filled – without having to report individual opera- check a bureaucracy of tens of thousands of staff, a tions to the relevant Committees.124 budget in the tens of billions, and hundreds of indi- Increasingly, the line between intelligence and vidual programs and activities.122 In addition to a lack military operations, which each take place under of time and resources – membership on the Intel- different statutory authorities, has been blurred; ligence Committee is only one of many issue areas this trend continues to this day, posing special chal- the lawmakers have to deal with – the classification lenges.125 When clandestine activities take place in rules represent a structural problem to effective over- connection with ongoing hostilities, the military is sight. Committee members may not share the infor- not subject to the same requirements of presidential mation they receive during classified hearings with approval and notification of Congress as the CIA. Out- outsiders, sometimes including their own staff. There- side the obvious areas of conflict of Afghanistan, Iraq, fore, it is hardly possible to independently verify the and Syria, however, such a connection is not always claims made by the intelligence agencies. Even if clear. On the other hand, the CIA seems to have laxer there are indications of misconduct, for example if rules on covert operations that violate the sovereignty intelligence agencies do not tell the truth, members of other states. Cooperation between the (formally of Congress cannot simply go public.123 civilian) CIA and the military units of the Joint Spe- The far-reaching authorization of the CIA in the cial Operations Command, which are authorized to wake of 9/11 to go after terrorists reduced to a mini- carry out operations in secret, has increased to such mum the oversight within the executive branch as an extent that it is sometimes unclear to outsiders well as the sharing of information with Congress. whether certain operations are carried out under With the blanket authorization of November 17, the mandate for the intelligence services or that for 2001, the formal legal requirement for approval by military operations and what rules apply. Both CIA the president and notification of Congress was ful- drones and military drones were apparently involved in the mission to kill US citizen Anwar Al-Awlaki in Yemen, but the operation was carried out according

to CIA rules.126 The mission to kill Osama Bin Laden the atmosphere after the Watergate affair with Congress in Pakistan was carried out by Seal Team Six emboldened to challenge the executive. 122 Even some unclassified military anti-terror measures (part of JSOC), which was placed under CIA command are apparently lost in the daily business. When four US for the operation, probably because it violated Paki- 127 troops were killed in on 4 October 2017, several Sena- stan’s sovereignty. Overall, the creative combina- tors, including Armed Services Committee member Lindsay tion of the various rules and regulations allows for Graham, admitted to not being aware of the extent of the maximum flexibility and minimum reporting obli- US mission in Niger. Daniella Diaz, “Key Senators Say They gations. Didn’t Know the US Had Troops in Niger”, CNN, 23 October 2017, http://edition.cnn.com/2017/10/23/politics/niger-troops- lawmakers/index.html. For more background, see Alexis Arieff et al., Niger: Frequently Asked Questions about the October 2017 Attack on U.S. Soldiers, CRS Report for Congress R44995 (Washington, D.C.: CRS, 27 October 2017). 123 One example was the testimony of NSA Director James 124 The CIA lawyer responsible for approving covert Clapper at a Senate Intelligence Committee hearing on 12 operations within the organization stated: “I had never March 2013. Asked by Senator Ron Wyden whether the NSA in my experience been part of or ever seen a presidential collected data on millions of Americans, Clapper denied this. authorization as far-reaching or as aggressive in scope. It Even though Wyden knew this to be false from confidential was simply extraordinary.” Sarah Moughty, “John Rizzo: The briefings he received as a member of the Judiciary Commit- Lawyer Who Approved CIA’s Most Controversial Programs”, tee, he could not do much about it. In a letter, he asked PBS Frontline, 6 September 2011, https://www.pbs.org/wgbh/ Clapper to correct his statement. This was ignored by Clap- frontline/article/john-rizzo-the-lawyer-who-approved-cias- per until the Snowden leaks revealed the truth. Janet Reit- most-controversial-programs/; see also Priest and Arkin, Top man, “Q&A: Senator Ron Wyden on NSA Surveillance and Secret America (see note 14), 12. Government Transparency”, Rolling Stone, 15 August 2013, 125 See Chesney, “Military-Intelligence Convergence” http://www.rollingstone.com/politics/news/q-a-senator-ron- (see note 13). wyden-on-nsa-surveillance-and-government-transparency- 126 Ibid., 617. 20130815. 127 Ibid., 539.

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32 Secrecy

The battle between the Senate and the CIA over the torture report

On March 5, 2009, the Senate Select Committee on Intelli- position as Committee chair, had been a reliable supporter gence decided in a bipartisan vote to conduct a review of of the intelligence agencies. In a speech on the Senate the CIA’s detention and interrogation program. Both the floor, she now alleged that, in trying to obstruct the investi- processes and the results of this review have since become gation, the CIA had violated the principle of the separation the subject of a fierce dispute between the Committee and of powers and the prohibition on conducting domestic sur- the CIA. About six months after the decision, the Repub- veillance. Attorney General Eric Holder did not take sides licans on the Committee withdrew their support, allegedly in the conflict and announced in July 2014 that he would because the attorney general’s investigation into the same not take action against either the CIA or the Committee matter made the Senate inquiry superfluous. After lengthy staff. CIA Inspector General David Buckley, after his own negotiations, the CIA granted Committee representatives investigation, sided with the Senate. When a specially access to 6.2 million pages of internal CIA documents by created Committee decided not to hold anyone in the CIA setting up a special system at a secure facility accountable for the events, Buckley resigned in . in . After years of work, the Committee produced From December 2012 to December 2014, the Intelli- a 6,000-page report – classified to this day – that called gence Committee, the CIA, and the White House haggled into question many of the CIA’s claims about the program. over what results of the final report should be published. In the course of their research, Committee staff came The Committee succeeded in publishing a 600-page, only across an internal CIA report – often referred to as the slightly redacted summary of the report. It described in “Panetta Review,” named after the director at the time – detail the origins and the cruelties of the interrogation whose conclusions contradicted the official CIA account program. Moreover, the report concluded: (1) the brutal that the brutal interrogations had contributed significant interrogation methods were not effective in gathering in- intelligence to the struggle against terrorism. The CIA formation; (2) the CIA did not correctly inform decision- maintained that it had not granted the Committee access makers and the public about the program; (3) there were to the Panetta Review. At least twice in 2010, it also deleted serious failures in the management of the program; (4) the other documents that it had previously made available to program was much more brutal than the CIA had admitted the Committee from the file system. CIA staff also searched to decision-makers and the public. Even taking into ac- the computer drives on which Committee staff kept their count the Senators’ interests in playing down their own own work results. When this came to the attention of the responsibility for the interrogation program, the impres- Committee chair on January 15, 2014, CIA Director John sion remains that the CIA used every means at its disposal Brennan first denied the allegations, before admitting a to prevent a highly critical, if not devastating, report about few months later that the searches had taken place. The the CIA from seeing the light of day. CIA, in turn, reported Committee staff to the FBI, accusing it of illegally accessing documents and removing them a “Transcript: Sen. Dianne Feinstein Says CIA Searched from the facility. Intelligence Committee ”, , On March 11, 2014, Senator Dianne Feinstein went pub- 11 March 2014, http://wapo.st/NWtFsa; Savage, Power lic with serious allegations against the CIA.a Feinstein was Wars (see note 18), 512–15. the ranking member of the Committee and, in her former

but it also accuses it of deliberately misleading those A congressional investigation accuses who are elected to conduct oversight. the CIA of misleading those elected to According to the report, even executive decision- provide oversight. makers were not kept fully in the loop.128 The bru- tality of the interrogation methods was systematically The Senate Intelligence Committee’s investigation played down to the administration and Congress, into the CIA’s detention and interrogation program while at the same time the method’s usefulness in provides particular insight into the difficult relation- ship between the legislative and executive branches – both in terms of the process of the investigation 128 For a critical assessment of the report, particularly on this point, see Robert Jervis, “The Torture Blame ”, and its results. The Intelligence Committee’s com- Foreign Affairs, May/June 2015, https://www.foreignaffairs. prehensive report not only examines the CIA’s actions, com/reviews/2015-04-20/torture-blame-game.

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33 The National Security State and the Power of the Executive

obtaining information was exaggerated. It is also part partly attributes to this development the fact that of the truth that the democratically elected leaders NSA surveillance was not uncovered before the did not ask enough questions, presumably because Snowden leaks. In the first such case during the they did not really want to know all the dirty de- Trump administration, NSA contractor tails.129 But regardless of the report’s conclusions, Winner was recently sentenced to 63 months in the CIA’s to influence those conclusions is prison for passing on a classified document to a very telling of how it sees its own role and exposes media outlet. Again, she was charged under the the methods it is willing to employ against US law- Espionage Act, even though the leaked information makers. was redacted before publication.131 Overall, there To protect its secrets, the government increasingly has been a significant change since 9/11. Whereas took action against those who passed information to prosecutors were previously very reluctant to force the press. While in the past the Justice Department reporters to disclose their sources – and virtually no had not put much effort into investigating leaks, in one was ever convicted of publishing classified infor- 2006 a task force of 12 prosecutors and 25 FBI em- mation – both are now firmly established practices. ployees was set up to prosecute those leaking clas- sified information.130 During Obama’s presidency, the Department of Justice brought a total of nine cases Impunity for the publication of – more than among all previous presidents put together. The normalization of controversial methods has also While some cases were taken over from the Bush been helped by the fact that no one has been held administration and others newly initiated, many of accountable for violations of the law that have oc- the leakers were charged under the Espionage Act curred. Those responsible for the use of torture acted of 1917, which provides for particularly draconian with impunity – a persistent breach of the UN Con- punishments. The law was initially intended for vention against Torture, which Washington has enemy spies (as the name implies), but due to its ratified, obliging states to prosecute violations of the imprecise wording, it can also be applied in cases provision on the prohibition of torture.132 Not only where the publication of classified information may were there no criminal charges, but also no discipli- end up allowing enemies to benefit from that infor- nary measures. Those responsible were able to con- mation. The New York Times journalist James Risen tinue their careers.133 After Obama’s election, the was threatened with imprisonment under Obama for years for refusing to name his sources. In this context, 131 Trevor Timm, “The Government’s Argument That a court ruled that journalists enjoy no special privi- Harmed National Security Doesn’t Hold Up”, leges to protect their sources under the First Amend- The Intercept, 23 August 2018, https://interc.pt/2N87X3w. ment, which guarantees the right to freedom of 132 The fact that no serious attempt was made to establish speech. Charlie Savage noted that, as a result, the accountability prompted the prosecutor of the International willingness of government sources to disclose clas- Criminal Court to ask for an investigation on possible crimes sified information has declined significantly. He committed by US personnel in Afghanistan, a move that, in turn, has provoked harsh criticism and threats against the court by the Trump administration. See John Bolton, “Pro- 129 Senators and CIA officials give conflicting accounts on tecting American and Sovereignty from how much Congress knew. The CIA claims to have repeat- International Threats”, remarks delivered to the Federalist edly briefed members of Congress on the use of enhanced in- Society, 10 September 2018, available at http://www. terrogation techniques. See Scott Shane and Carl Hulse, “List lawfareblog.com/national-security-adviser-john-bolton- Says Top Democrats Were Briefed on Interrogations”, New remarks-federalist-society. York Times, 8 May 2009, https://nyti.ms/2Krb4RT; Marc Am- 133 This is true on almost all levels. Jay Bybee, who in the binder, “What Pelosi Knew”, , 8 May 2009, https:// Justice Department was responsible for the greenlighting www.theatlantic.com/politics/archive/2009/05/what-pelosi- of torture, was appointed as a federal judge for life in 2003 knew/17309/. (before the torture memos became public). John Yoo, who 130 On this and the following, see James Risen, “The authored many of the torture memos, remains professor of Biggest Secret. My Life As a New York Times Reporter in the law at the University of California at Berkeley. Dick Cheney’s Shadow of the War on Terror”, The Intercept, 3 January 2018, legal counsel David Addington became vice president for https://interc.pt/2Cx81Zx; Savage, Power Wars (see note 18), research at the Heritage Foundation; Gina Haspel, who led a 350–414. black site in , where prisoners were tortured, was

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34 Impunity

Justice Department started investigations, which were soon closed again without any charges being filed. The likely reason was that the Obama administration did not want to antagonize the intelligence commu- nity. Conflicts with advocates of “enhanced interroga- tion techniques” in Congress, the Republican Party, and the security establishment could have derailed the entire agenda of the newly elected president. Nevertheless, foregoing any accountability has caused permanent damage to the norm outlawing torture, even after the problematic practices were ended. The advocacy of torture remains an acceptable position in mainstream . Not only did Donald Trump speak approvingly of the use of tor- ture, presidential candidate Mitt Romney in the 2012 election campaign also spoke out in favor of advanced interrogation techniques. During the 2016 election campaign, the majority of Republican candidates advocated reintroducing them. Without any sign of regret, ex-Vice President Cheney criticizes the renun- ciation of torture at every opportunity, and Bruce Jessen, the psychologist mainly responsible for the development of interrogation techniques, aggressively defends his actions. In film and on television, scenes in which American intelligence agents engage in tor- ture now belong to the standard repertoire of screen- writers.134

appointed to the position of CIA Director by Donald Trump. Even CIA employees whose failures caused the torture of innocents and even to deaths among detainees did not face disciplinary consequences. One notable exception are the 11 low-ranking soldiers who were convicted, some to prison terms, for their involvement in the Abu Ghraib scandal. See Adam Goldman and Matt Apuzzo, “CIA Officers Make Grave Mistakes, Get Promoted”, NBC News, 9 February 2011, http:// www.nbcnews.com/id/41484983/ns/us_news-security/t/cia- officers-make-grave-mistakes-get-promoted/. 134 See e.g. Robert Cochran and Joel Surnow, 24 (Los Angeles: Fox, 2001–2010); Pierre Morel, Taken (Los Angeles: 20th Century Fox, 2008); Gregor , Un- thinkable (Culver : Sony Pictures Home , 2010); Daniél Espinosa, Safe House (New York, NY: Universal Pictures, 2012).

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35 Conclusion: The Cost of the Forever-War

Conclusion: The Cost of the Forever-War

In the Trump era, the US war on terrorism does not United States.”135 Congress denied this general seem to be the most pressing issue on the transatlan- authorization and limited the authorization to those tic agenda. However, it is a phenomenon that is not responsible for 9/11 and associated forces. Since then, limited to one president or one party. If Europeans there have been debates as to whether a new legal take Trump’s presidency as an opportunity to reflect basis is necessary because the situation has evolved. more generally on their strong dependence on the Paradoxically, some of the drafts now under discus- United States, they should also include the issue of sion, which seek to adapt and renew the authoriza- how to deal with terrorism in their considerations. tion of military force, are even broader in scope. For The question is to what extent European states, and example, a bipartisan bill introduced in the Senate in particular Germany, are prepared to continue would codify the executive’s interpretation of who is to support the controversial approach of the US in an “associated force,” and thus a legitimate target of fighting terrorism. military force. The draft not only mentions numerous The immediate and existential threat following the groups that only emerged after 9/11, but also leaves attacks of 9/11 has passed, and yet terrorism contin- it to the president to designate further groups.136 ues to hold a central place in the American percep- In discourse about national security, the terrorist tion of its security environment. The limited successes threat is now being overshadowed by new challenges. in this war so far have been primarily tactical. No cost Due to ’s aggressive policy and ’s assertive has been spared, and many compromises of principles stance, the return of rivalries among the great powers and ideals have been accepted in order to prevent ter- is being discussed more and more.137 In the sense that rorist attacks, even if the danger is not very concrete, terrorism dominates the strategic debate, the post- and despite the fact that – in terms of statistics – 9/11 era is coming to an end. However, this does not the security risk that jihadist terrorism poses to West- mean the end of the war against terrorism, which to ern is relatively low. Despite all the differ- some degree has always taken place in the shadows. ences between Trump’s administration and the Bush New challenges will certainly lead to adjustments. The and Obama administrations, in the war on terror, US military’s procurement policy is already changing continuity prevails. Following Obama’s time in the – away from hardware for counter- opera- White House, many controversial methods are now tions and toward the requirements for interstate con- more firmly institutionalized than ever before. flicts. Such a reorientation is more difficult to detect Policies introduced for exceptional situations have in the intelligence services because of the secrecy of become the standard. their use of resources. However, it can be assumed That there is no end in sight to this war is also due to the fact that Congress has allowed the executive to 135 See Grimmet, Authorization for Use of Military Force in extend its methods to ever-new groups and territories. Response to the 9/11 Attacks (see note 6). Right after 9/11, Congress refused to issue the presi- 136 Schwarz, “Cure Worse Than Disease” (see note 99). dent carte blanche. The original White House draft 137 According to the National Defense of 2018, resolution for the AUMF requested legal authoriza- “Inter-state strategic , not terrorism, is now the tion for the president “to deter and pre-empt any primary concern in U.S. national security”. Department of future acts of terrorism or against the Defense, “Summary of the 2018 National Defense Strategy of the United States of America”, 1, https://www.defense.gov/ Portals/1/Documents/pubs/2018-National-Defense-Strategy- Summary.pdf.

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36 Conclusion: The Cost of the Forever-War

that more personnel will also be deployed in the of examples of this dynamic. After Snowden revealed future to analyze developments in China and Russia, the extent of NSA surveillance, it became much more especially since Moscow’s interference in the US elec- difficult to call out China’s hacking in its attempt to tion campaign in 2016 caught the intelligence ser- acquire industrial secrets. Criticism of the “little green vices largely unprepared – despite the surveillance men” Moscow has sent to and Syria is also powers created over the previous 15 years.138 more convincing if one does not send one’s own special forces to hunt down terrorists in faraway Western democracies have under- places – while sometimes also not wearing uniforms mined their credibility in the com- with clearly identifiable insignia or having the gov- petition with authoritarian systems. ernment not accept responsibility for their opera- tions. However, the new type of anti-terrorism fight can Of course, the global commitment to human rights be conducted with fewer resources, partly because and the rule of law suffers the most. Governments of armed drones are a comparatively cheap instrument. all kinds have quickly learned to put their own strug- A new drone base is currently being completed in gles against political opponents under the banner of Niger for $110 million, which will enable the US to “fighting terrorism.” Russia once “fought terrorists” reach large parts of West and North Africa in the in Chechnya and is now doing so in Syria; China uses future. The number of US troops active in Niger has the same rhetoric when it persecutes Uighurs.140 grown from 40 soldiers in 2013 to around 800 at Turkish President Recep Tayyip Erdoğan now present. American special forces, such as the Army’s routinely accuses unpopular journalists of “support- Green Berets, operate largely outside the public eye ing terrorism” in order to justify their imprisonment. in ever-new places, from the Nigerian-Malian to the Although even under the best circumstances any Saudi-Yemeni . The activities of the US special outsider’s ability to influence dictators such as Abdel forces in training security forces in states such as Fattah al-Sisi in Egypt or Bashar al-Assad in Syria is and , which currently have a in doubt, the struggle against torture is more difficult, budget of around $100 million, are also continu- since their secret services have previously tortured ing.139 on behalf of the US. The events of 2003 in the Iraqi With regard to future geopolitical conflicts with prison of Abu Ghraib, which was already notorious China and Russia, Western democracies have done for torture at the time of , represents themselves no favors by normalizing behavior that perhaps the greatest missed opportunity to establish violates long-standing norms. In the competition a new awareness of human rights after the regime between democracies and authoritarian systems, change in Iraq. The ’s policy of en- which also takes place with respect to value systems abling the security forces of various North African and soft power, the weakening of norms has under- countries to curb migration to Europe through train- mined the West’s credibility. The idea of integrating ing and equipment is problematic in any case, due other states – and in particular emerging powers – to the lack of the rule of law in many partner states. into existing norms and legal systems suffers when Convincing these countries to treat migrants humanely one can be charged with hypocrisy. There are plenty is not made easier by the Western approach to the issue of terrorism.

138 Dana Priest, “Russia’s Election Meddling Is Another President Trump has repeatedly stated publicly American Intelligence Failure”, , 13 November that human rights are no longer a priority for US 2017, https://www.newyorker.com/news/news-desk/russias- foreign policy. He has thus adjusted his declaratory election-meddling-is-another-american-intelligence-failure. policy to more closely resemble the actual practice. 139 Eric Schmitt, “A Shadowy War’s Newest Front: A Drone We can only hope that the United States, under a new Base Rising from Saharan Dust”, New York Times, 22 April administration, will return to promoting a strong 2018, https://nyti.ms/2HjkxhB; Joe Penny, “Africa, Latest commitment to human rights. However, the war on in America’s Endless War”, New York Review of Books Daily, 12 March 2018, http://www.nybooks.com/daily/2018/ 03/12/africa-latest-theater-in-americas-endless-war/; Helene Cooper et al., “Army Special Forces Secretly Help Saudis 140 Mehdi Hasan, “One Million Muslim Uighurs Have Been Combat Threat from Yemen Rebels”, New York Times, 3 May Detained by China, the U.N. Says. Where’s the Global Out- 2018, https://nyti.ms/2HI2f9Q. rage?”, The Intercept, 13 August 2018, https://interc.pt/2MlBNo6.

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37 Conclusion: The Cost of the Forever-War

terror, conducted outside of the traditional normative framework, would be a major obstacle. If European governments wish to maintain human rights advocacy as a foreign policy goal, they should not be silent in the face of violations. In the early years of the global war on terror, US methods were strongly criticized by Europe’s governments. This has now largely ceased. It is not clear whether this is due to the fact that Europeans are now increasingly experiencing terrorist attacks of their own, whether they became less critical out of understanding or sympathy for the Obama administration, or whether they have simply become accustomed. In any case, little of what prompted the initial criticism has changed. To tolerate – or even adopt – such prob- lematic methods is not only contrary to Europe’s claim of being a guardian of the rule of law and human rights. It also carries the risk of a return to even worse episodes in the war on terrorism. Trump’s election illustrates how shortsighted it is to trust in the judg- ment of the man occupying the White House – as the Europeans did with Obama. Even in the best hands, too much power creates potential for abuse. Only strong laws, institutions, and norms can pre- vent this.

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38 Abbreviations

Abbreviations

AUMF Authorization for Use of Military Force CIA Central Intelligence Agency CRS Congressional Research Service DNI Director of National Intelligence FAA FISA Amendments Act FBI Federal Bureau of Investigation FISA Foreign Intelligence Surveillance Act G-SAVE Global Struggle Against Violent GWAT Global War On Terror ICRC International Committee of the Red Cross JSOC Joint Special Operations Command MCA Military Commissions Act NSA National Security Agency OLC Office of Legal Counsel (US Justice Department) PCLOB Privacy and Civil Liberties Oversight Board SERE Survival, Evasion, Resistance and Escape UAV US United States

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39